Opinion
No. 112221
06-23-2022
The People of the State of New York, Respondent, v. George F. Kirschbaum, Appellant.
Thomas R. Villecco, Albany, for appellant. Meagan K. Galligan, District Attorney, Monticello (Lisa M. Bondarenka of counsel), for respondent.
Calendar Date: May 26, 2022
Thomas R. Villecco, Albany, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Lisa M. Bondarenka of counsel), for respondent.
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.
Reynolds Fitzgerald, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered September 10, 2019, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and agreed to waive his right to appeal. Defendant was sentenced, as a second felony offender, in accordance with the terms of the plea agreement to concurrent prison terms of eight years followed by three years of postrelease supervision. Defendant appeals.
We affirm. The People concede, and our review of the record confirms, that the waiver of the right to appeal is invalid. The oral colloquy discussing the waiver of the right to appeal was overly broad as defendant was improperly advised that the appeal waiver amounted to a complete bar to pursuing a direct appeal and any collateral relief in state and federal courts (see People v Bisono, 36 N.Y.3d 1013, 1017 [2020]; People v Ward, 204 A.D.3d 1172, 1172 [2022]; People v Beach, 197 A.D.3d 1440, 1440-1441 [2021]).
Although the record indicates that defendant also executed a written appeal waiver, no such written appeal waiver is contained in the County Court file and it could not be located upon appellate counsel's inquiry to that court.
Given the invalid appeal waiver, defendant is not precluded from challenging the agreed-upon sentence as unduly harsh and severe (see People v Lopez, 6 N.Y.3d 248, 257 [2006]). To the extent that defendant asserts that he should have been sentenced to a drug treatment program, we note that a specific condition of the plea agreement was that such a sentence not be imposed. In any event, we discern no basis upon which to disturb the sentence imposed (see CPL 470.15 [6] [b]).
Garry, P.J., Lynch, Aarons and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.