People v. Jacobs

184 N.Y.S.3d 634 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jeremy JACOBS, Appellant.

110667B

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

Calendar Date: February 10, 2023

Decided and Entered: March 30, 2023

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered June 9, 2017 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to the reduced charge of attempted assault in the first degree and purportedly waived his right to appeal. Pursuant to the terms of the plea agreement, Supreme Court sentenced defendant to a prison term of five years followed by five years of postrelease supervision. Defendant appealed and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal ( 206 A.D.3d 1156, 167 N.Y.S.3d 853 [3d Dept. 2022] ).

Initially, the People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid given the overbroad language in the written appeal waiver and the insufficient brief oral colloquy that fails to establish that defendant appreciated the nature and ramifications of the appeal waiver or that some appellate issues survive (see People v. Ford, 210 A.D.3d 1142, 1142–1143, 175 N.Y.S.3d 914 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 784, 204 N.E.3d 420 [2023] ; People v. Clark, 209 A.D.3d 1063, 1064, 175 N.Y.S.3d 751 [3d Dept. 2022] ). As such, defendant is not precluded from challenging the severity of the sentence imposed (see People v. Goodwalt, 205 A.D.3d 1070, 1071, 167 N.Y.S.3d 250 [3d Dept. 2022], lv denied 38 N.Y.3d 1071, 171 N.Y.S.3d 452, 191 N.E.3d 404 [2022] ). Nonetheless, despite the mitigating factors relied upon by defendant, we are unpersuaded that the negotiated sentence was unduly harsh or severe (see CPL 470.15[6][b] ; People v. Lorenz, 211 A.D.3d 1109, 1114, 178 N.Y.S.3d 836 [3d Dept. 2022] ), and decline defendant's invitation to reduce his sentence in the interest of justice (see CPL 470.15[3][c] ; People v. Thompkins, 211 A.D.3d 1183, 1184, 179 N.Y.S.3d 473 [3d Dept. 2022] ).

Egan Jr., J.P., Aarons, Ceresia, ...