People v. Bolster

210 A.D.3d 1205

178 N.Y.S.3d 256

The PEOPLE of the State of New York, Respondent,

v.Cody A. BOLSTER, Appellant.

112953

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

Calendar Date: October 18, 2022

Decided and Entered: November 10, 2022

Joseph E. Ermeti, Public Defender, Delhi (George V. Collins III of counsel), for appellant.

John L. Hubbard, District Attorney, Delhi (Shawn J. Smith of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from a judgment of the County Court of Delaware County (Gary A. Rosa, J.), rendered March 29, 2021, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant was charged in a superior court information with burglary in the third degree, petit larceny and criminal possession of stolen property in the fifth degree. In full satisfaction thereof, defendant agreed to plead guilty to burglary in the third degree with the understanding that he would be placed on interim probation for a period of no more than 12 months subject to various terms and conditions, including – as relevant here – that he successfully complete the Delaware County Adult Treatment Court Program. If successful, defendant would be permitted to withdraw his plea and plead guilty to petit larceny, whereupon he would be sentenced to an additional two years of probation supervision. If unsuccessful, defendant would be sentenced to a prison term of 2 to 7 years. The plea agreement also required defendant to waive his right to appeal, to execute a treatment court contract and to abide by various terms and conditions of his interim probation. Defendant pleaded guilty in conformity with the agreement in November 2019, and County Court (Northrup Jr., J.) placed him on interim probation.

In January 2020, defendant was sanctioned for his failure to report for urinalysis drug screens as required and, between July 2020 and August 2020, twice was charged with violating his probation by, among other things, failing to attend recommended treatment programs. On both occasions, the violation petitions were withdrawn, various sanctions were imposed and defendant's interim probation was continued. Thereafter, in January 2021, defendant again was charged with violating the terms and conditions of his probation by failing to abide by his curfew and refrain from consorting with disreputable individuals. Following a hearing, County Court (Rosa, J.) sustained the curfew violation and thereafter revoked defendant's interim probation and imposed the contemplated prison term. This appeal ensued.

Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid. County Court (Northrup Jr., J.) did not explain that defendant's waiver of the right to appeal was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty, and the court's oral colloquy otherwise failed to establish that defendant appreciated the nature and ramifications of the appellate rights being relinquished (see People v. Rodriguez, 206 A.D.3d 1383, 1384, 170 N.Y.S.3d 359 [3d Dept. 2022] ; People v. Boyd, 206 A.D.3d 1350, 1351, 170 N.Y.S.3d 681 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 47, 194 N.E.3d 754 [2022] ). Additionally, the written waiver of appeal and the waiver provision embodied in defendant's treatment court contract purport to either effectuate a waiver of "any and all rights to appeal from the judgment of conviction" or encompass "all issues arising from [the] criminal proceeding." Given the overbroad language contained in the written waiver of appeal, which County Court did not ascertain defendant had read or understood (see People v. Harper, 207 A.D.3d 965, 965–966, 172 N.Y.S.3d 241 [3d Dept. 2022] ), and the noted deficiencies in the court's oral colloquy, we cannot say that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Ellithorpe, 207 A.D.3d 1001, 1001–1002, 170 N.Y.S.3d 918 [3d Dept. 2022] ; People v. Gotham, 202 A.D.3d 1157, 1157, 161 N.Y.S.3d 513 [3d Dept. 2022], lv denied 38 N.Y.3d 950, 165 N.Y.S.3d 472, 185 N.E.3d 993 [2022] ; compare People v. Andino, 185 A.D.3d 1218, 1218–1219, 127 N.Y.S.3d 629 [3d Dept. 2020], lv denied 35 N.Y.3d 1110, 133 N.Y.S.3d 503, 158 N.E.3d 520 [2020] ).

In light of the invalid appeal waiver, defendant's challenge to the perceived severity of his sentence is not precluded (see People v. Carney, 207 A.D.3d 1000, 1001, 172 N.Y.S.3d 243 [3d Dept. 2022] ). That said, given defendant's documented lack of success on interim probation and his established violation of the terms...