People v. Knowlton

207 A.D.3d 1002

170 N.Y.S.3d 921 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Chad R. KNOWLTON, Appellant.

111642

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

Calendar Date: June 17, 2022

Decided and Entered: July 28, 2022

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for respondent.

Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered December 12, 2018, convicting defendant upon his plea of guilty of the crime of course of sexual conduct against a child in the first degree.

Defendant pleaded guilty to a superior court information charging him with course of sexual conduct against a child in the first degree and agreed to waive his right to appeal. County Court denied defendant youthful offender status and, consistent with the terms of the plea agreement, sentenced him to 20 years in prison followed by 20 years of postrelease supervision, to run concurrent with the federal prison term that defendant was currently serving. Defendant appeals.

We agree with defendant that his appeal waiver is invalid. Defendant executed a written waiver after conferring with counsel, which indicated that it was applicable to, among other things, "any other matter which [defendant] may have an appeal as of right or otherwise." Such language erroneously suggested that defendant's waiver of his right to appeal was an absolute bar to any appeal (see People v. Figueroa, 192 A.D.3d 1269, 1270, 144 N.Y.S.3d 240 [2021] ; compare People v. Thomas, 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Vittengl, 203 A.D.3d 1390, 1391, 163 N.Y.S.3d 715 [2022] ; People v. Mirel, 194 A.D.3d 1198, 1199, 146 N.Y.S.3d 703 [2021] ). Moreover, County Court did not cure the defect in the waiver by providing sufficient instruction "ensuring that defendant understood that some appellate and collateral review survived the waiver" ( People v. Figueroa, 192 A.D.3d at 1270, 144 N.Y.S.3d 240 ; see People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ). Given the invalid waiver, defendant's challenge to the sentence imposed is not precluded (see People v. Torres, 205 A.D.3d 1211, 1212, 166 N.Y.S.3d 615 [2022] ). Nevertheless, upon our review of the record, which reflects that defendant engaged in a protracted period of...