Opinion
112500
04-06-2023
The PEOPLE of the State of New York, Respondent, v. Lukas Suter WINTER, Appellant.
Clifford P. Owens, Acting Public Defender, Kingston (Carly P. Burkhardt of counsel), for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Clifford P. Owens, Acting Public Defender, Kingston (Carly P. Burkhardt of counsel), for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Garry, P.J. Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered September 20, 2019, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
In 2019, defendant pleaded guilty to burglary in the third degree as a sexually motivated felony, admitting that he unlawfully entered the victim's home and attempted to force her to perform oral sex on him while he held a knife. Defendant further purported to waive his right to appeal, both orally and in writing. Pursuant to the plea agreement, County Court sentenced defendant to a prison term of seven years, to be followed by 10 years of postrelease supervision, and required him, upon his release from prison, to register as a sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]). Defendant appeals.
Initially, defendant challenges the requirement that he register as a sex offender under SORA. Although we agree with the People that defendant's contention is unpreserved, we nevertheless find it appropriate to exercise our interest of justice jurisdiction under the circumstances presented (see CPL 470.15[3][c] ; People v. Buyund, 37 N.Y.3d 532, 541, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021] ; People v. Buyund, 205 A.D.3d 729, 731, 165 N.Y.S.3d 705 [2d Dept. 2022] ). Addressing the merits of defendant's challenge, we agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as "[s]ex offense[s]" pursuant to Correction Law § 168–a (2) (see People v. Simmons, 203 A.D.3d 106, 110–113, 161 N.Y.S.3d 69 [1st Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 239, 189 N.E.3d 346 [2022] ; People v. Buyund, 179 A.D.3d 161, 163–170, 112 N.Y.S.3d 179 [2d Dept. 2019], revd on other grounds 37 N.Y.3d 532, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021] ). As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA (see Correction Law § 168–a [2][a] ; Penal Law § 130.91 ; People v. Simmons, 203 A.D.3d at 110–113, 161 N.Y.S.3d 69 ; People v. Buyund, 179 A.D.3d at 163–170, 112 N.Y.S.3d 179 ).
Turning to the remainder of defendant's contentions, we agree that his waiver of the right to appeal is invalid. To be effective, the record must demonstrate that a waiver of the right to appeal was made "knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). To this end, "though a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" ( id. ). Where the trial court has "mischaracterized the nature of the right a defendant was being asked to cede, an appellate court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights" ( People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] [internal quotation marks and citation omitted]).
During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing "any argument" that defendant might take to a higher court (see id. at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The written waiver, in turn, states that "[i]t is [defendant's] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case." Although the written appeal waiver also includes qualifying language limiting its application "to all legal issues that can be waived under the law[,]" and the court confirmed that defendant had discussed the waiver with counsel (see e.g. People v. Soto, 199 A.D.3d 1128, 1129, 156 N.Y.S.3d 571 [3d Dept. 2021] ; People v. Thomas, 190 A.D.3d 1157, 1158–1159, 139 N.Y.S.3d 458 [3d Dept. 2021] ), we find that the "totality of the circumstances" presented here fails to confirm that defendant understood that some appellate review would survive the waiver ( People v. Thomas, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. McNeil, 210 A.D.3d 1200, 1201, 178 N.Y.S.3d 242 [3d Dept. 2022] ; People v. Witherspoon, 210 A.D.3d 1145, 1146, 178 N.Y.S.3d 236 [3d Dept. 2022], lv denied 39 N.Y.3d 1076, 183 N.Y.S.3d 777, 204 N.E.3d 413 [2023] ; People v. Streater, 207 A.D.3d 952, 953–954, 172 N.Y.S.3d 238 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 519, 198 N.E.3d 762 [2022] ).
In view of defendant's invalid appeal waiver, his challenge to the severity of his sentence is not precluded (see People v. Blauvelt, 211 A.D.3d 1175, 1175, 180 N.Y.S.3d 328 [3d Dept. 2022] ; People v. Moore, 203 A.D.3d 1401, 1401, 163 N.Y.S.3d 712 [3d Dept. 2022], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 216, 189 N.E.3d 323 [2022] ). In this regard, defendant argues that certain of County Court's commentary at sentencing indicates that the sentence imposed was based upon the court's over-personalization of the case rather than consideration of appropriate factors – namely, societal protection, rehabilitation, deterrence, and the circumstances giving rise to the conviction (see People v. Johnson, 197 A.D.3d 61, 72, 150 N.Y.S.3d 401 [3d Dept. 2021] ). Although we have previously found similar statements to be inappropriate (see e.g. People v. Lancaster, 200 A.D.3d 1352, 1356, 158 N.Y.S.3d 399 [3d Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 477, 185 N.E.3d 998 [2022] ), we do not find the agreed-upon sentence imposed here to be unduly harsh or severe, despite being at the maximum of the permissible statutory range, in view of the nature of defendant's conduct (see CPL 470.15[6][b] ; Penal Law §§ 70.45[2–a][a] ; 70.80[4][a][iii]).
Lynch, Clark, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee; and, as so modified, affirmed.