People v. Ramjiwan

209 A.D.3d 1176

177 N.Y.S.3d 740

The PEOPLE of the State of New York, Respondent,

v.Davo RAMJIWAN, Appellant.

112684

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

Calendar Date: October 7, 2022

Decided and Entered: October 27, 2022

Richard L. Herzfeld, New York City, for appellant.

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

Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered January 7, 2020, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the second degree.

In January 2019, defendant was charged by indictment with criminal sexual act in the second degree and endangering the welfare of a child. The charges stemmed from allegations that, in November 2018, defendant engaged in oral sexual conduct with another person less than 15 years old. In September 2019, in full satisfaction of the indictment as well as other charges pending in Schenectady County in a separate matter, defendant pleaded guilty to criminal sexual act in the second degree and purportedly waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced to two years in prison, to be followed by eight years of postrelease supervision. Defendant appeals.

Initially, we agree with defendant that his waiver of the right to appeal is invalid. The written appeal waiver is overbroad in that it erroneously claims to be a complete bar to a direct appeal as well as collateral proceedings, "and County Court did not overcome that defect by ensuring that defendant understood that some appellate and collateral relief survives an appeal waiver" ( People v. Palmer, 207 A.D.3d 802, 803, 170 N.Y.S.3d 739 [3d Dept. 2022] [internal quotation marks and citation omitted]; see People v. Alexander, 207 A.D.3d 878, 879, 172 N.Y.S.3d 516 [3d Dept. 2022] ; People v. Katoom, 205 A.D.3d 1132, 1133, 167 N.Y.S.3d 647 [3d Dept. 2022] ). Given the absence of a valid appeal waiver, defendant's challenge to the severity of his sentence is properly before us (see People v. Winters, 196 A.D.3d 847, 849, 151 N.Y.S.3d 263 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 413, 175 N.E.3d 438 [2021] ; People v. Justiniano, 134 A.D.3d 1172, 1174, 20 N.Y.S.3d 714 [3d Dept. 2015] ).

Although defendant has reached the maximum expiration date of his prison sentence, he has not reached the maximum expiration date of his undischarged period of postrelease supervision, and defendant's appeal challenging the severity of his sentence is therefore not moot (see People v. Curry, 206 A.D.3d 1646, 1646, 167 N.Y.S.3d 877 [4th Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 33, 194 N.E.3d 740 [2022] ; People v. Purdie, 205 A.D.3d 1225, 1226, 168 N.Y.S.3d 190 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 849, 193 N.E.3d 514 [2022] ; People v. Hancarik, 202 A.D.3d 1151, 1151, 160 N.Y.S.3d 497 [3d Dept. 2022] ). That said, we do not find the period of postrelease supervision imposed to be unduly harsh or severe given the nature of defendant's conduct (see CPL 470.15[6][b] ; People v. Izzo, 108 A.D.3d 944, 945, 969 N.Y.S.2d 233 [3d Dept. 2013], lv denied 21 N.Y.3d 1074, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). Further, the term of postrelease supervision was within the permissible statutory range (see Penal Law §§ 70.45[2–a] ; 70.80, 130.45) and within "the sentencing...