People v. Williams

202 A.D.3d 1162

162 N.Y.S.3d 204

The PEOPLE of the State of New York, Respondent,

v.DeShawn WILLIAMS, Appellant.

111091

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

Calendar Date: January 7, 2022

Decided and Entered: February 3, 2022

G. Scott Walling, Slingerlands, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nichole M. Sands of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered December 14, 2018, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree and robbery in the third degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count each of robbery in the second degree, grand larceny in the fourth degree and robbery in the third degree. The charges stemmed from two separate incidents that occurred on the same day in December 2017. In the first incident, defendant placed what appeared to be a firearm to the victim's head and stole her purse, which contained money; in the second incident, defendant forcibly stole the victim's handbag, which contained a credit card. In satisfaction of the superior court information, defendant pleaded guilty to robbery in the second degree and robbery in the third degree with the understanding that he would be sentenced to a prison term of eight years followed by five years of postrelease supervision upon his conviction of robbery in the second degree and to a prison term of 2 to 7 years upon his conviction of robbery in the third degree, those terms to run concurrently. The plea agreement also required defendant to waive his right to appeal.

Following various adjournments, the parties returned to County Court for sentencing, at which time the court considered defendant's eligibility for youthful offender treatment. After hearing from counsel, County Court concluded that defendant was not an eligible youth within the meaning of CPL 720.10(3) and, in any event, that it would not have elected to adjudicate defendant a youthful offender. As a result, County Court imposed the contemplated terms of imprisonment, and this appeal ensued.

We affirm. Initially, we agree with defendant that his waiver of the right to appeal was invalid. The written waiver executed by defendant arguably was overbroad and, in any event, County Court "failed to ascertain whether defendant had read the waiver, understood it or had ample time to discuss it with counsel" ( People v. Gamble, 190 A.D.3d 1022, 1024, 138 N.Y.S.3d 729 [2021], lvs denied 36 N.Y.3d 1095, 1097, 1098, 144 N.Y.S.3d 134, 154, 155, 156, 167 N.E.3d 1296, 1289, 1290, 1291 [2021]). The deficiencies in the written waiver were not cured by the court's terse oral colloquy with defendant, which, in our view, was "insufficient to permit the conclusion that the counseled defendant understood the distinction that some appellate review survived" ( People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [2021] [internal quotation marks, brackets and citation omitted], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 206, 169 N.E.3d 564 [2021] ; see People v. Gervasio, 190 A.D.3d 1190, 1191, 136 N.Y.S.3d 813 [2021] ). Accordingly, neither defendant's challenge to the severity of his sentence nor his claim that County Court abused its discretion in failing to adjudicate him a youthful offender is precluded (see generally People v. Martz, 181 A.D.3d 979, 980–981, 119 N.Y.S.3d 310 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 [2020] ; People v. Wilson, 165 A.D.3d 1323, 1324, 85 N.Y.S.3d 605 [2018] ).

As to the merits, "[w]here, as here, a youth has been convicted of an armed felony offense, he or she is eligible to be found a youthful offender if the sentencing court determines that one or more of the factors set forth in CPL 720.10(3) are present – namely, whether there are mitigating circumstances that bear directly upon the manner in which the crime was committed or, if the defendant was not the sole participant in the crime, whether the defendant's participation was relatively minor, although not so minor as to constitute a defense" ( People v. Jones, 182 A.D.3d 698, 699, 123 N.Y.S.3d 207 [2020] [internal quotation marks, brackets and citations omitted]; see People v. Meridy, 196 A.D.3d 1, 6–7, 147 N.Y.S.3d 287 [2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ; People v. Colon, 173 A.D.3d 1255, 1256, 102 N.Y.S.3d 753 [2019] ). "If the court determines, in its discretion, that neither of the CPL 720.10(3) factors exist[s] and states the reason for that determination on the record, no further determination by the court is required" ( People v. Jones, 182 A.D.3d at 699, 123 N.Y.S.3d 207 [internal quotation marks and citation omitted]).

Although defendant was not the sole participant in the robberies, his participation therein cannot be categorized as minor, as he was the one who placed what appeared to be a firearm to the first victim's head and, in...