| People v Brewster |
| 2018 NY Slip Op 03395 [161 AD3d 1309] |
| May 10, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shakaan Brewster, Appellant. |
John Ferrara, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered July 10, 2014, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a controlled substance inthe third degree.
After a search of defendant's apartment reportedly uncovered several guns and drugs,including individually packaged bags of heroin and drug paraphernalia, defendant was charged ineight felony complaints and three informations with various crimes. Pursuant to a negotiated pleaagreement that resolved all of the charges and included an appeal waiver, defendant waivedindictment and pleaded guilty to criminal possession of a weapon in the second degree andcriminal possession of a controlled substance in the third degree, as charged in a superior courtinformation. The agreement capped defendant's aggregate prison sentence at 10 years with fiveyears of postrelease supervision. County Court thereafter imposed concurrent prison sentenceswith a maximum aggregate term of eight years, followed by five years of postrelease supervision.Defendant now appeals.
Initially, we are persuaded by defendant's argument that he did not knowingly, intelligentlyand voluntarily waive his right to appeal. Although defendant executed a detailed, written waiverthat included both a waiver of indictment and an appeal waiver, County Court did not explain thenature and consequences of the appeal waiver or advise defendant that the right to appeal isseparate and distinct from the rights automatically forfeited upon a guilty plea (see [*2]People v Metayeo, 155 AD3d 1239, 1240 [2017]; People v Musella, 148 AD3d1465, 1466-1467 [2017], lv denied 29 NY3d 1093 [2017]; People v Ritter, 124 AD3d 1133,1134 [2015]). In fact, County Court improperly lumped defendant's waiver of his right to appealwith the trial rights that he was forfeiting by pleading guilty (see People v Ortiz, 153 AD3d 1049, 1049 [2017]; People v Gonzalez, 138 AD3d1353, 1354 [2016]; People vLowe, 133 AD3d 1099, 1100 [2015]). Moreover, County Court did not verify thatdefendant had read and understood the written appeal waiver or discussed it with counsel (see People v Thompson, 157 AD3d1141, 1141 [2018]; People vWilliams, 132 AD3d 1155, 1155 [2015], lv denied 27 NY3d 1157 [2016]).Accordingly, we find the waiver of appeal to be invalid (see People v Gonzalez, 138AD3d at 1354; People v Ritter, 124 AD3d at 1134).
Inasmuch as he did not make an appropriate postallocution motion to withdraw his plea(see CPL 220.60 [3]), defendant failed to preserve his contention that he did notknowingly, voluntarily and intelligently enter into the guilty plea and his further argument thatthe plea was factually insufficient (seePeople v Cook, 150 AD3d 1543, 1544 [2017]; People v O'Neill, 116 AD3d 1240, 1241 [2014]; People v Williams, 102 AD3d1055, 1056 [2013], lv denied 22 NY3d 1044 [2013]). Moreover, the narrowexception to the preservation rule is inapplicable since defendant did not make any statementsduring the plea allocution that cast doubt upon his guilt or called the voluntariness of his pleainto question (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Davis, 136 AD3d 1220,1221 [2016], lv denied 27 NY3d 1068 [2016]; People v Ramos, 135 AD3d 1234, 1234-1235 [2016], lvdenied 28 NY3d 935 [2016]). Defendant's constitutional challenge to the sentence issimilarly unpreserved (see People vSander, 47 AD3d 1012, 1013 [2008], lv denied 10 NY3d 844 [2008]; Peoplev Burt, 142 AD2d 794, 794 [1988]; People v Peale, 122 AD2d 353, 354 [1986];see generally People v Beaumont, 299 AD2d 657, 659 [2002], lv denied 99 NY2d580 [2003]). Therefore, there is no basis to disturb the judgment.
Egan Jr., J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.