| People v Davis |
| 2016 NY Slip Op 01358 [136 AD3d 1220] |
| February 25, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Davis, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman Jr. ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered April 24, 2006, convicting defendant upon his plea of guilty ofthe crime of assault in the first degree.
While playing cards in their cell, defendant, a prison inmate, engaged in a fight withhis cellmate on April 7, 2005. Documentary evidence contained in the record on appealreflects that the cellmate, who "appeared to have been severely beaten," died fromasphyxiation due to strangulation. As a result, defendant was indicted and charged withone count of murder in the second degree (depraved indifference murder) in August2005. In full satisfaction of that charge, defendant entered into a plea agreement thatincluded a waiver of the right to appeal, pursuant to the terms of which defendantpleaded guilty to the reduced charge of assault in the first degree (depraved indifferenceassault). Consistent with that agreement, County Court thereafter sentenced defendant, asan admitted second felony offender, to 14 years in prison followed by five years ofpostrelease supervision, to be served consecutively to the sentence defendant then wasserving. Defendant now appeals.[FN*]
[*2] Defendant first contends that his purported waiver ofthe right to appeal was not knowing, intelligent and voluntary. We agree. AlthoughCounty Court elicited an oral appeal waiver from defendant, the court neither explainedthe meaning thereof nor inquired as to whether defendant had discussed the waiver of hisappellate rights with counsel (see People v Ashlaw, 126 AD3d 1236, 1237 [2015]).Similarly, while defendant signed a written appeal waiver in open court, County Courtdid not ask whether defendant had read the waiver, was aware of its contentsor—again—had discussed it with counsel. Accordingly, we are unable toconclude that defendant appreciated the consequences of the waiver (see People v Elmer, 19 NY3d501, 510 [2012]; People vRabideau, 130 AD3d 1094, 1094-1095 [2015]; People v Ashlaw, 126AD3d at 1237; People vVences, 125 AD3d 1050, 1051-1052 [2015]).
Defendant next challenges the factual sufficiency of his plea, arguing that CountyCourt failed to elicit sufficient facts to show that he acted with a depraved indifference tohuman life. This argument, however, is unpreserved for our review absent recordevidence that defendant made an appropriate postallocution motion (see People v Atkinson, 124AD3d 1149, 1150 [2015], lv denied 25 NY3d 949 [2015]; People v Sylvan, 107 AD3d1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Contrary todefendant's assertion, the narrow exception to the preservation requirement was nottriggered here, "as defendant made no statements during the plea allocution that negatedan element of the crime or otherwise called into doubt his guilt or the voluntariness of hisplea" (People v Richardson,132 AD3d 1022, 1023 [2015]; see People v Atkinson, 124 AD3d at 1150; People v Rouse, 119 AD3d1161, 1162-1163 [2014]). To the extent that defendant faults County Court for notmore fully exploring the depraved indifference element of the crime during the course ofthe plea colloquy, "defendant was not required to recite the elements of his crime orengage in a factual exposition" (People v White, 84 AD3d 1641, 1641 [2011] [internalquotation marks and citation omitted], lv denied 18 NY3d 887 [2012]; accordPeople v Rouse, 119 AD3d at 1163). In any event, we are satisfied that defendant'saffirmative and unequivocal responses to County Court's inquiries were sufficient toestablish the elements of the subject crime (cf. People v Anderson, 38 AD3d 1061, 1062 [2007], lvdenied 8 NY3d 981 [2007]).
Finally, in light of the invalid appeal waiver, defendant's challenge to the sentenceimposed as harsh and excessive is not precluded. That said, we are not persuaded that areduction in the agreed-upon sentence is warranted—particularly givendefendant's admission that he strangled the victim, ultimately causing his death.Accordingly, the judgment of conviction is affirmed.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendantfiled a notice of appeal from the judgment of conviction in April 2006, he did not perfecthis appeal in this Court until August 2015. The reasons underlying defendant's delay inso doing are not readily apparent.