| People v Terry |
| 2016 NY Slip Op 03355 [138 AD3d 1484] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam Terry, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered April 18, 2013. The judgment convicted defendant, upon his plea ofguilty, of attempted sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the finding that defendant is a second violent felony offender andreplacing it with a finding that he is a predicate felony sex offender and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted sexual abuse in the first degree (Penal Law§§ 110.00, 130.65 [3]). We agree with defendant that he did notvalidly waive his right to appeal because, "[a]lthough the record establishes thatdefendant executed a written waiver of the right to appeal, there was no colloquybetween [Supreme] Court and defendant regarding the waiver of the right to appeal toensure that it was knowingly, voluntarily and intelligently entered" (People v Carno, 101 AD3d1663, 1664 [2012], lv denied 20 NY3d 1060 [2013]). Contrary to thePeople's contention, the fact that the written waiver stated that defendant "waive[d]. . . [his] right to have the court explain on the record . . . [his]right to appeal and the significance of [his] waiver of appeal" does not compel a differentresult. " '[A] written waiver does not, standing alone, provide sufficientassurance that the defendant is knowingly, intelligently and voluntarily giving up hisright to appeal' " (People v Banks, 125 AD3d 1276, 1277 [2015], lvdenied 25 NY3d 1159 [2015]; see People v Bradshaw, 18 NY3d 257, 264-265 [2011];People v Callahan, 80 NY2d 273, 283 [1992]).
Defendant contends that the court erred in imposing a supplemental sex offendervictim fee because he was not convicted of an offense contained in article 130 of thePenal Law, but instead was convicted of an attempt to commit such an offense(see Penal Law § 60.35 [1] [b]). Defendant failed to preserve thatissue for our review (seegenerally People v Arnold, 107 AD3d 1526, 1528 [2013], lv denied 22NY3d 953 [2013]; People vCooper, 77 AD3d 1417, 1419 [2010], lv denied 16 NY3d 742 [2011]),and we decline to exercise our power to review it as a matter of discretion in the interestof justice (see CPL 470.15 [3] [c]). We reject defendant's alternative contentionthat the fee should be vacated on the ground that defense counsel's failure to object to thefee constituted ineffective assistance of counsel. Defendant's contention "does notsurvive his guilty plea because [t]here is no showing that the plea bargaining process wasinfected by any allegedly ineffective assistance or that defendant entered the plea becauseof his attorney['s] allegedly poor performance" (People v Abdulla, 98 AD3d 1253, 1254 [2012] [internalquotation marks omitted], lv denied 20 NY3d 985 [2012]).
The court sentenced defendant as a second violent felony offender to a determinateterm of incarceration of four years with five years of postrelease supervision. Inasmuchas attempted sexual abuse in the first degree is not a violent felony (see PenalLaw § 70.02 [1] [d]), we modify the judgment by adjudicating defendant apredicate felony sex offender (see § 70.80 [1] [c]; People v [*2]Flores, 135 AD3d 415, 415 [2016]; People v Garcia, 29 AD3d255, 264 [2006], lv denied 7 NY3d 789 [2006]). Although that issue was notraised by the parties, we cannot allow an illegal sentence to stand (see People v Hughes, 112AD3d 1380, 1381 [2013], lv denied 23 NY3d 1038 [2014]; People v Perrin, 94 AD3d1551, 1551 [2012]). The maximum term of incarceration is four years for both asecond violent felony offender (Penal Law § 70.04 [2], [3] [d]) and apredicate felony sex offender with a violent predicate felony offense(§ 70.80 [1] [c]; [5] [c]), and we therefore see no reason to remit forresentencing (see Hughes, 112 AD3d at 1381; Perrin, 94 AD3d at 1551;People v Terry, 90 AD3d1571, 1571-1572 [2011]; cf. People v Donhauser [appeal No. 2], 37 AD3d1053, 1054 [2007]). The sentence is not unduly harsh or severe. Although defendantreceived the maximum period of incarceration, he was sentenced to the minimum periodof postrelease supervision, which could have been as much as 15 years (Penal Law§ 70.45 [2-a] [g]). In light of defendant's significant history of convictionsof sex offenses, we see no reason to reduce the sentence. Present—Centra, J.P.,Carni, DeJoseph, Curran and Scudder, JJ.