People v. Blair

205 A.D.3d 1227

166 N.Y.S.3d 617 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Nailon BLAIR, Appellant.

112188

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 18, 2022

Decided and Entered: May 19, 2022

Erin C. Morigerato, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Colangelo, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered August 13, 2019 in Schenectady County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the second degree and purportedly waived the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 15 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.

We agree with defendant's contention that his waiver of the right to appeal was invalid. Defendant executed a written appeal waiver that was overbroad, in that it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Hilts, 200 A.D.3d 1306, 1306, 155 N.Y.S.3d 385 [2021] ; People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 411, 174 N.E.3d 350, 351 [2021]). Moreover, Supreme Court did not overcome this overbroad language by ensuring during the colloquy that defendant understood that some appellate and collateral review survived the waiver (see People v. Lunan, 196 A.D.3d 969, 969–970, 148 N.Y.S.3d 408 [2021] ; People v. Avera, 192 A.D.3d 1382, 1382, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ).

Defendant's contention that his plea was not knowing, intelligent and voluntary and that he was denied the effective assistance of counsel are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Nack, 200 A.D.3d 1197, 1198, 157 N.Y.S.3d 590 [2021], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 1478682 [Apr. 20, 2022] ; People v. Blankenbaker, 197 A.D.3d 1353, 1354, 150 N.Y.S.3d 631 [2021] ). As to the plea, we note that the narrow exception to the preservation rule was triggered by defendant's statements at his initial sentencing hearing that he did not intend to commit a crime, negating an element of burglary in the second degree (see Penal Law § 140.25 ), which imposed a duty on the part of Supreme Court to conduct a further inquiry (see People v. Chin, 160 A.D.3d 1038, 1039, 73 N.Y.S.3d 685 [2018] ; People v. Rich, 140 A.D.3d 1407, 1407, 34 N.Y.S.3d 250 [2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ). After defendant's statements, Supreme Court adjourned sentencing and, upon reconvening five days later, defendant informed the court that, in the interim, he had discussed the element of intent with counsel and that he was no longer claiming a lack of intent to commit a crime. "As defendant failed to express any dissatisfaction with the court's remedial action in this regard, defendant has waived any further challenge to his allocution" ( People v. Rich, 140 A.D.3d at 1407, 34 N.Y.S.3d 250 [internal quotation marks, brackets and citations omitted]; see People v. Greene, 195 A.D.3d 1317, 1318, 146 N.Y.S.3d 539 [2021] ). Accordingly, we find that defendant's plea was knowing, intelligent and voluntary (see People v. Lopez, 71 N.Y.2d 662, 667–668, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Greene, 195 A.D.3d at 1318, 146 N.Y.S.3d 539 ; People v. Rich, 140 A.D.3d at 1407, 34 N.Y.S.3d 250 ).

Finally, we reject defendant's contention that his sentence is harsh and excessive. Although the sentence imposed was the maximum second felony offender sentence for this crime (see Penal Law §§ 70.06[6][b] ; 140.25), Supreme Court, in accord with the plea agreement, declined to sentence defendant as a persistent felony offender (see People v. Elder, 173 A.D.3d 1344, 1346, 102 N.Y.S.3d 768 [2019], lv denied 34 N.Y.3d 930, 109 N.Y.S.3d 749, 133 N.E.3d 455 [2019] ; People v. Farrell, 156 A.D.3d 1062, 1063, 65 N.Y.S.3d 465 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ). As such, and in light of defendant...