People v. Thaxton

222 A.D.3d 1171

202 N.Y.S.3d 518

The PEOPLE of the State of New York, Respondent,

v.John THAXTON, Also Known as Tayvon Johnson, Also Known as Airyck Johnson, Also Known as Gwalla, Appellant.

112252

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

Calendar Date: October 18, 2023

Decided and Entered: December 21, 2023

Carolyn B. George, Albany, for appellant.

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

Before: Clark, J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered November 15, 2019 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (two counts).

Defendant was charged in a single-count indictment with burglary in the second degree (indictment No. 20–9240). That indictment was subsequently consolidated with a portion of a prior indictment that charged defendant with four counts of burglary in the second degree (counts 1 through 4 of indictment No. 7–8882). The remaining counts in the prior indictment charged defendant with varying degrees of robbery (counts 5 through 8 of indictment No. 7–8882) and were severed for trial purposes. In satisfaction of the consolidated indictment, defendant pleaded guilty to two counts of burglary in the second degree – as charged in count 2 of indictment No. 7–8882 and count 1 of indictment No. 20–9240 – and agreed to waive his right to appeal. At sentencing, Supreme Court denied defendant youthful offender status and sentenced him, in accordance with the plea agreement, to a prison term of 15 years followed by five years of postrelease supervision on count 2 of indictment No. 7–8882 and a consecutive prison term of 10 years followed by five years of postrelease supervision on count 1 of indictment No. 20–9240. Such sentence was ordered to run concurrently with an aggregate 25–year sentence imposed on three robbery convictions following the aforementioned trial, which is the subject of a companion appeal ( People v. Thaxton, 222 A.D.3d 1175, ––– N.Y.S.3d –––– [3d Dept. 2023] [decided herewith]). Defendant appeals.¹

The People concede, and our review of the record confirms, that defendant's waiver of his right to appeal is invalid given the overbroad nature of the appeal waiver and Supreme Court's failure to adequately advise defendant that the right to appeal was separate and distinct from those automatically forfeited by his guilty plea (see People v. Jacobs, 214 A.D.3d 1258, 1259, 184 N.Y.S.3d 634 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 516, 213 N.E.3d 658 [2023] ; People v. Hammond, 214 A.D.3d 1211, 1211, 183 N.Y.S.3d 864 [3d Dept. 2023] ; People v. Clark, 209 A.D.3d 1063, 1064, 175 N.Y.S.3d 751 [3d Dept. 2022], lv denied 39 N.Y.3d 1140, 188 N.Y.S.3d 439, 209 N.E.3d 1268 [2023] ). As such, defendant's challenges to the effective assistance of counsel based upon alleged deficiencies in discovery efforts and severity of the sentence imposed are not precluded. However, to the extent that defendant contends that he did not receive the effective assistance of counsel due to counsel's alleged failure to request discovery material, "any perceived deficiencies in counsel's motion practice or discovery efforts were forfeited by defendant's unchallenged guilty plea" ( People v. Bermudez, 217 A.D.3d 1261, 1263, 192 N.Y.S.3d 309 [3d Dept. 2023] [citations omitted], lv denied 40 N.Y.3d 996, 197 N.Y.S.3d 102, 219 N.E.3d 863 [2023] ; see People v. Jones, 210 A.D.3d 150, 152, 177 N.Y.S.3d 174 [3d Dept. 2022] ).

As to defendant's contentions relative to his sentence, defendant, who was 18 years old at the time he committed the burglaries, contends that Supreme Court abused its discretion in not considering appropriate factors in declining to accord him youthful offender treatment. We disagree. Contrary to defendant's contention, the record reflects that the court considered the relevant mitigating factors which were set forth by defense counsel and in the presentence report, including defendant's upbringing in the foster care system from primarily the age of two due to parental neglect, his family history of substance abuse, trauma, domestic violence and mental illness, as well as defendant's overall poor decision-making. The court nevertheless determined on the record that the mitigating factors did not excuse the serious and violent crimes defendant engaged in which resulted in not only the instant conviction, but multiple robbery convictions which included physical abuse of one of the victims. Under these circumstances, the court did not abuse its discretion in denying youthful offender treatment (see People v. Turner, 174 A.D.3d 1123, 1127, 107 N.Y.S.3d 477 [3d Dept. 2019], lv denied 34 N.Y.3d 985, 113 N.Y.S.3d 645, 137 N.E.3d 15 [2019] ; People v. Wilson, 165 A.D.3d 1323, 1325, 85 N.Y.S.3d 605 [3d Dept. 2018] ). However, as to defendant's sentence, we deem it appropriate to take corrective action in the interest of justice and modify the sentence imposed upon one conviction for burglary in the second degree (see CPL 470.15[6][b] ; People v. Kerrick, 206 A.D.3d 1268, 1271, 169 N.Y.S.3d 751 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 32, 194 N.E.3d 739 [2022] ; People v. Coleman, 281 A.D.2d 653, 654, 721 N.Y.S.2d 160 [3d Dept. 2001] ). That said, the term of imprisonment for the conviction of burglary in the second degree (count 1 of indictment No. 20–9240) should be reduced to five years followed by five years of postrelease supervision, which is to run consecutively to the sentence already imposed for the other burglary in the second degree conviction (count 2 of indictment No. 7–8882), and concurrently with the aggregate 20–year sentence imposed on defendant's robbery convictions in the companion appeal (counts 5, 6 and 8 of indictment No. 7–8882) ( People v. Thaxton, 222 A.D.3d at ––––, ––– N.Y.S.3d –––– ).

Clark, J.P., Aarons and Fisher, JJ., concur.

Ceresia, J. (concurring in part and dissenting in part).

I concur with nearly all aspects of the majority's decision. However, I respectfully disagree that the circumstances of this case lend themselves to a finding that corrective action should be taken in the interest of justice to reduce defendant's sentence.

Initially, it should be emphasized that the sentence that the majority now reduces was the product of a negotiated plea. Defendant, represented by experienced counsel and with eyes wide open, expressly agreed to the term of imprisonment which he ultimately received, and the record bears out that there was good reason for him to do so. As is more fully set forth in People v. Thaxton, 222 A.D.3d 1175, ––––, ––– N.Y.S.3d –––– (3d Dept. 2023) (decided herewith), at the time that defendant decided to move forward with his guilty plea in this case, he had already been found guilty following a jury trial in another case of three violent felonies – one count of robbery in the first degree ( Penal Law § 160.15[3] ) and two counts of robbery in the second degree ( Penal Law § 160.10[1] ), and...