People v. Elawar

204 A.D.3d 1247

165 N.Y.S.3d 385 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Abdallah ELAWAR, Appellant.

112193

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

Calendar Date: March 22, 2022

Decided and Entered: April 21, 2022

Erin C. Morigerato, Albany, for appellant.

Joseph Stanzione, District Attorney, Catskill (Denise Kerrigan of counsel), for respondent.

Before: Lynch, J.P., Clark, Reynolds Fitzgerald, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from a judgment of the County Court of Greene County (Wilhelm, J.), rendered September 17, 2019, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

After he was found to be in possession of dangerous contraband – specifically, a temple from a pair of eyeglasses that had been sharpened to a point – defendant was indicted and charged with promoting prison contraband in the first degree. The People afforded defendant the opportunity to enter an Alford plea to attempted promoting prison contraband in the first degree with a recommended prison term of 1½ to 3 years, to be served consecutively to the sentence defendant then was serving. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and County Court sentenced defendant – as a second felony offender – to the contemplated term of imprisonment. This appeal ensued.

We affirm. Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid. The written waiver executed by defendant contained overbroad language purporting to waive "any and all of [defendant's] rights to appeal," and, in any event, County Court "failed to ascertain whether defendant had read the waiver, understood it or had ample time to discuss it with counsel" ( People v. Gamble, 190 A.D.3d 1022, 1024, 138 N.Y.S.3d 729 [2021], lvs denied 36 N.Y.3d 1095, 1097, 1098, 144 N.Y.S.3d 156, 134, 154, 155, 167 N.E.3d 1291, 1269, 1289, 1290 [2021]; see People v. Lenahan, 201 A.D.3d 1255, 1256, 158 N.Y.S.3d 640 [2022] ). Additionally, County Court's brief oral colloquy with defendant neither explained the nature and/or ramifications of the waiver of the right to appeal (see People v. Alexander, 194 A.D.3d 1261, 1262, 147 N.Y.S.3d 261 [2021], lv denied 37 N.Y.3d 1094, 156 N.Y.S.3d 771, 178 N.E.3d 418 [2021] ; People v. Bowman, 194 A.D.3d 1123, 1124, 146 N.Y.S.3d 686 [2021], lvs denied 37 N.Y.3d 963, 966, 148 N.Y.S.3d 743, 745, 171 N.E.3d 219, 966 [2021]) nor "ensure[d] that defendant understood the distinction that some appellate review survived" ( People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021] [internal quotation marks and citations omitted], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 411, 174 N.E.3d 350, 351 [2021]; see People v. Gervasio, 190 A.D.3d 1190, 1191, 136 N.Y.S.3d 813 [2021] ). In light of the invalid appeal waiver, defendant's challenge to the perceived severity of his sentence is not precluded (see People v. Burnell, 183 A.D.3d 931, 932, 123 N.Y.S.3d 728 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020] ). That said, given that defendant received the minimum legally permissible sentence for a second felony offender convicted of a class E felony, his sentence cannot be said to be harsh or excessive (see Penal Law §§ 70.06[3][e] ; [4][b]; 110.00, 205.25[2]; People v. Woods, 199 A.D.3d 1169, 1169, 154 N.Y.S.3d 496 [2021], lv denied 37 N.Y.3d 1166, 160 N.Y.S.3d 687, 181 N.E.3d 1115 [2022] ).

Although defendant's challenge to the voluntariness of his Alford plea survives even a valid appeal waiver, it is unpreserved for our review in the absence of an appropriate post-allocution motion, and the narrow exception to the preservation requirement is inapplicable (see People v. Crandall, 181 A.D.3d 1091, 1092–1093, 120 N.Y.S.3d 522 [2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2022] ; People v. Mickel, 157 A.D.3d 1140, 1141, 66 N.Y.S.3d 924 [2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; People v. Morehouse, 140 A.D.3d 1202, 1203, 33 N.Y.S.3d 491 [2016], lv denied 28 N.Y.3d 934, 40 N.Y.S.3d 362, 63 N.E.3d 82 [2016] ). We also decline defendant's invitation to take corrective action in the interest of justice. Defendant's ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. White, 157 A.D.3d 1128, 1130, 69 N.Y.S.3d 444 [2018], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ; People v. Smalls, 128 A.D.3d 1281, 1282, 8 N.Y.S.3d 614 [2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ). The balance of defendant's ineffective assistance of counsel claim, including defendant's assertions that counsel failed to properly investigate the underlying facts and circumstances, neglected to adequately explain the consequences of an Alford plea and did not explore potential defenses, implicates matters outside of the record and, as such, is more properly the...