People v. Farmer

170 N.Y.S.3d 515 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Joseph FARMER, Appellant.

112774

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

Calendar Date: June 17, 2022

Decided and Entered: July 21, 2022

Tina Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Aarons, J.P., Reynolds Fitzgerald, Ceresia, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered September 24, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In satisfaction of a four-count indictment and other pending charges, defendant pleaded guilty to criminal possession of a weapon in the second degree and agreed to waive his right to appeal. He was sentenced, as a second violent felony offender, to the agreed-upon prison term of eight years followed by five years of postrelease supervision. Defendant appeals.

We agree with defendant's contention that his waiver of the right to appeal is invalid. The written waiver is overbroad and County Court's brief colloquy regarding the appeal waiver did not cure its defects (see People v. Vezequ, 205 A.D.3d 1138, 1138, 167 N.Y.S.3d 638 [2022] ; People v. Stratton, 201 A.D.3d 1201, 1202, 159 N.Y.S.3d 763 [2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 243, 189 N.E.3d 350 [2022] ). As defendant's waiver of the right to appeal is unenforceable, defendant's challenge to the severity of the sentence is not precluded. Nevertheless, we discern no basis upon which to disturb the sentence as unduly harsh or severe (see CPL 470.15[6][b] ) – particularly given defendant's lengthy criminal history, along with the fact that the agreed-upon sentence was well below the maximum term of imprisonment for a class C violent felony offense (see Penal Law §§ 70.04[1][a] ; [3][b]; 265.03[3]; People v. Kabia, 197 A.D.3d 788, 792, 152 N.Y.S.3d 519 [2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 702, 181 N.E.3d 1130 [2022] ; People v. Feliciano, 108 A.D.3d 880, 882, 969 N.Y.S.2d 221 [2013], lv denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ).

Aarons, J.P., Reynolds Fitzgerald, Ceresia, Fisher and McShan, JJ., concur.

ORDERED that the judgment is affirmed.