People v. Brito

184 A.D.3d 900

124 N.Y.S.3d 749

The PEOPLE of the State of New York, Respondent,

v.Dillon BRITO, Appellant.

109806

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

Decided and Entered: June 4, 2020

May 19, 2020

Adam W. Toraya, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Devine, J. Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered September 7, 2017, convicting defendant upon his plea of guilty of the crime of promoting prison contraband in the first degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 2 to 4 years that would be served consecutively to the sentence he then was serving. The plea agreement also required defendant to waive his right to appeal. County Court imposed the promised prison term and this appeal ensued.

Defendant initially contends that his waiver of the right to appeal is invalid. We agree. To be sure, County Court sufficiently explained the nature of the appeal waiver and did not impermissibly lump it into the trial-related rights that defendant automatically was forfeiting by pleading guilty (see People v. Crawford, 181 A.D.3d 1057, 1058–1059, 119 N.Y.S.3d 633 [2020] ). Similarly, defendant was aware that he was required to waive his right to appeal as part of the plea agreement (see People v. O'Neill, 172 A.D.3d 1778, 1779, 100 N.Y.S.3d 797 [2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 655, 134 N.E.3d 654 [2019] ) and indicated that he understood the nature of the waiver. He further executed a written waiver in open court, wherein he acknowledged the separate and distinct nature of his appellate rights and that the waiver encompassed the right to appeal his conviction and sentence (see People v. Ward, 171 A.D.3d 1312, 1313, 95 N.Y.S.3d 668 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 49, 129 N.E.3d 369 [2019] ). That said, County Court never inquired whether defendant had read the written waiver, had any questions relative thereto and/or had been afforded sufficient time to confer with counsel. More to the point, although County Court's oral colloquy did not convey that there was an "absolute bar" to further remedies ( People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), the written waiver purports to effectuate a waiver of defendant's right to pursue "all post-conviction remedies" (see People v. Barrales, 179 A.D.3d 1313, 1315, 118 N.Y.S.3d 263 [2020] ; cf. People v. Martz, 181 A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020] ). Given the limited colloquy between defendant and County Court, the lack of assurances provided by defendant and the language contained in the written waiver itself, which "purported to encompass certain nonwaivable rights" ( People v. Martz, 181 A.D.3d at 980, 119 N.Y.S.3d 310 ), we are not persuaded that defendant knowingly, intelligently and voluntarily waived his right to appeal.

Defendant's challenge to the voluntariness and/or factual sufficiency of his plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Favreau, 174 A.D.3d 1226, 1227, 105 N.Y.S.3d 721 [2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 631, 137 N.E.3d 1 [2019] ; People v. Suddard, 164 A.D.3d 950, 951, 77 N.Y.S.3d 910 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 615, 121 N.E.3d 243 [2019] ). Further, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an element of the charged crime or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement does not apply (see People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [...