People v. Katoom

205 A.D.3d 1132

167 N.Y.S.3d 647

The PEOPLE of the State of New York, Respondent,

v.Jainanine KATOOM, Appellant.

109808B

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

Calendar Date: March 22, 2022

Decided and Entered: May 12, 2022

Veronica Reed, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Colangelo, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered July 6, 2017, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.

In November 2016, defendant was charged by indictment with burglary in the second degree, criminal contempt in the second degree and three counts of criminal mischief in the fourth degree, stemming from allegations that, two months prior, he unlawfully entered a residence in violation of an order of protection and, while inside, damaged several walls and a bathroom door. Defendant pleaded guilty to attempted burglary in the second degree, and, as part of the plea agreement, was required to waive his right to appeal. He was sentenced to the agreed-upon prison term of three years, to be followed by 1½ years of postrelease supervision. Defendant appeals.

Defendant contends that his waiver of appeal was not knowing, intelligent and voluntary. The record reflects that County Court used overbroad language when explaining that, by waiving the right to appeal, defendant agreed "not [to] take [his] case to a higher court once [they] finish it ... and appeal it." This statement was insufficient to ensure that defendant appreciated the nature and consequences of the rights that he was relinquishing (see People v. Thomas, 34 N.Y.3d 545, 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), nor was it "clear to defendant that the appeal waiver was not a total bar to defendant taking an appeal" ( People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021], lvs denied 37 N.Y.3d 953, 959, 960, 147 N.Y.S.3d 548, 549, 170 N.E.3d 422, 423 [2021]; see People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021] ). The written waiver, which was executed by defendant, stated that defendant was waiving his "right to appeal from any other matters for which [he] may have an appeal as of right or otherwise in any [s]tate or [f]ederal [c]ourt, or that [he] may collaterally attack pursuant to [CPL articles 330 or 440], or through [w]rits of [c]orum [n]obis or [h]abeas [c]orpus, or any other manner, in any [s]tate or [f]ederal [c]ourt." In light of this overbroad language, and the lack of any indication that defendant understood that he retained the right to some appellate review, we find that defendant did not knowingly, intelligently and voluntarily waive the right to appeal (see People v. Thomas, 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Aponte, 190 A.D.3d at 1032, 138 N.Y.S.3d 724 ; People v. Anderson, 184 A.D.3d 1020, 1020–1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 364, 152 N.E.3d 1165, 1166 [2020]).

Defendant's challenges to the voluntariness of his plea and his claim of ineffective assistance of counsel were not preserved for our review by an appropriate postallocution motion, and the narrow exception to the preservation rule was not triggered here (see People v. Anderson, 184 A.D.3d at 1021, 124 N.Y.S.3d 589 ; People v. Sabin, 179 A.D.3d 1401, 1402–1403, 118 N.Y.S.3d 769 [2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020] ). We further reject defendant's challenge to the effectiveness of his representation based upon his claim that defense counsel did not advise him of the immigration consequences of his guilty plea. The record reflects that prior to defendant's plea, defense counsel unequivocally stated to County Court, "I've explained to my client ... that[,] as he is not a citizen, ... this decision will have deportation consequences, just as the same as if he was convicted after trial would have deportation consequences." The court then stated, "Since you are not legally a United States citizen, it is ... a very real possibility that you will, in fact, be subject to a final deportation order as a result of this plea of guilty. Do you understand that?" Defendant replied, "Yes, sir."...