People v. Torres

205 A.D.3d 1211

166 N.Y.S.3d 615 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jeremiah TORRES, also known as Benny, Appellant.

110874

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

Calendar Date: April 26, 2022

Decided and Entered: May 19, 2022

Catherine A. Barber, Guilderland, for appellant.

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

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 25, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree.

In satisfaction of a seven-count indictment, defendant pleaded guilty to criminal contempt in the first degree and purportedly waived his right to appeal. Supreme Court thereafter sentenced defendant, as a second felony offender, to a prison term of 2 to 4 years. Defendant appeals.

Initially, we agree with defendant's contention that his waiver of the right to appeal is invalid. "The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts" ( People v. Harris, 201 A.D.3d 1030, 1030, 156 N.Y.S.3d 766 [2022], lvs denied 38 N.Y.3d 950, 952, 954, 165 N.Y.S.3d 469, 470, 482, 185 N.E.3d 990, 991, 1103 [2022]; see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ; People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 411, 174 N.E.3d 350, 351 [2021]). In addition, a review of the plea colloquy reveals that Supreme Court failed to overcome this defect "by ensuring that defendant understood that some appellate rights survive the appeal waiver" ( People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [2021] ; see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Lafond, 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 193, 169 N.E.3d 551 [2021] ).

Defendant's contention that his guilty plea was involuntary because he allegedly was not informed of his maximum potential sentencing exposure is unpreserved for appellate review, as he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. Phillip, 200 A.D.3d 1108, 1108, 157 N.Y.S.3d 312 [2021] ; People v. Williams, 189 A.D.3d 1978, 1980, 138 N.Y.S.3d 690 [2020], lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 686, 181 N.E.3d 1114 [2022] ; People v. Leasure, 177 A.D.3d 770, 772, 114 N.Y.S.3d 367 [2019], lv denied 35 N.Y.3d 971, 125 N.Y.S.3d 3, 148 N.E.3d 467 [2020] ).

In light of the invalid appeal waiver, defendant's claim that the sentence is harsh and excessive is not precluded from our review. That said, given defendant's criminal history and that the sentence was in accordance with the plea agreement, we discern no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Larose, 120 A.D.3d 1442, 1443, 993 N.Y.S.2d 390 [...