People v Harris

2017 NY Slip Op 03573 [150 AD3d 1337]

May 4, 2017

Appellate Division, Third Department

As corrected through Wednesday, June 28, 2017

[*1]

The People of the State of New York, Respondent, v StevenHarris, Appellant.

G. Scott Walling, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.

Peters, P.J. Appeal from a judgment of the County Court of Schenectady County (Loyola, J.),rendered August 24, 2015, convicting defendant upon his plea of guilty of the crime of criminalcontempt in the second degree (two counts).

In satisfaction of a 15-count indictment, defendant pleaded guilty to two counts of criminalcontempt in the second degree as a result of violating the terms of an order of protection andwaived his right to appeal. Defendant was sentenced, in accordance with the plea agreement, toconsecutive one-year jail terms. He appeals.

We agree with defendant that the waiver of the right to appeal was invalid. A review of thecolloquy reflects that County Court did not "meet its obligation to ensure that defendantunderstood that his appeal waiver encompassed a right 'separate and distinct from those. . . automatically forfeited upon a plea of guilty' " (People v Burgette, 118 AD3d1034, 1035 [2014], lv denied 24 NY3d 1118 [2015], quoting People v Lopez, 6 NY3d 248, 256[2006]). The only inquiry by the court with respect to the waiver of the right to appeal waswhether defendant executed the written waiver knowingly, voluntarily andintelligently.^[FN*]Moreover, the court did not inquire as to " 'the circumstances surrounding the document'sexecution' or confirm that defendant had been fully advised by counsel of the document'ssignificance" (People v Chappelle,121 AD3d 1166, 1167[*2][2014], lv denied 24 NY3d1118 [2015], quoting People v Callahan, 80 NY2d 273, 283 [1992]). As such, the invalidappeal waiver does not preclude defendant's challenge to the sentence as harsh and excessive.Nevertheless, we find no abuse of discretion or extraordinary circumstances warranting areduction of the agreed-upon sentence (see People v Saxton, 75 AD3d 755, 760 [2010], lv denied15 NY3d 924 [2010]).

McCarthy, Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:It is unclear from the recordwhether the appeal waiver was executed before or during the plea colloquy.