| People v McClain |
| 2018 NY Slip Op 03780 [161 AD3d 1457] |
| May 24, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Hussayn McClain, Appellant. |
John Ferrara, Monticello, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered December 14, 2016, convicting defendant upon his plea of guilty of the crime of failureto register or verify as a sex offender.
Defendant, a risk level three sex offender, waived indictment and agreed to be prosecutedpursuant to a superior court information charging him with failure to register or verify as a sexoffender as required by Correction Law §§ 168-f (3) and 168-t. The resultingplea agreement contemplated that defendant would waive his right to appeal and plead guilty tothe charged crime with the understanding that he would be incarcerated for nine months in thelocal jail. Following defendant's guilty plea, County Court imposed the agreed-upon sentence,which, defendant advises us, he has now served. This appeal ensued.
Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid.During its abbreviated colloquy with defendant, "County Court did not explain the separate anddistinct nature of the waiver or ascertain that defendant fully understood its consequences" (People v Dumas, 155 AD3d 1256,1256 [2017] [citations omitted]; seePeople v Farrell, 156 AD3d 1062, 1062 [2017], lv denied 30 NY3d 1115[2018]). Similarly, although defendant executed a detailed written waiver in open court, CountyCourt "made no attempt to ensure that defendant understood the content[s]" or ramificationsthereof (People v Ortiz, 153 AD3d1049, [*2]1049 [2017] [internal quotation marks, ellipsis andcitations omitted]; see People vAubain, 152 AD3d 868, 869 [2017]). Under these circumstances, defendant did notknowingly, intelligently and voluntarily waive his right to appeal (see e.g. People v Herbert, 147 AD3d1208, 1208-1209 [2017]).
Defendant's challenge to the factual sufficiency of his plea is unpreserved for our reviewabsent evidence of an appropriate postallocution motion (see People v Bailey, 158 AD3d 948, 948 [2018]; People v Depugh, 158 AD3d 945,945 [2018]). Contrary to defendant's assertion, he did not "make any statements during the pleacolloquy that negated an essential element of the crime or otherwise cast doubt upon his guilt soas to trigger the narrow exception to the preservation rule" (People v Park, 159 AD3d 1132, 1133 [2018]; see People v Joubert, 155 AD3d1255, 1256 [2017], lv denied 30 NY3d 1116 [2018]). Finally, inasmuch as defendanthas completed his agreed-upon, nine-month jail sentence, his claim that such sentence was harshand excessive is moot (see People vToft, 156 AD3d 1234, 1235 [2017]).
McCarthy, J.P., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.