| People v Mallard |
| 2018 NY Slip Op 05528 [163 AD3d 1350] |
| July 26, 2018 |
| Appellate Division, Third Department |
[*1](July 26, 2018)
| The People of the State of New York,Respondent, v Eric Mallard, Appellant. |
Dennis J. Lamb, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Appeal from a judgment of the Supreme Court (McGrath, J.), rendered November 12, 2013in Rensselaer County, convicting defendant upon his plea of guilty of the crime of manslaughterin the first degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count of manslaughter in the first degree with theunderstanding that he would be sentenced to a prison term of 20 years followed by five years ofpostrelease supervision. The plea agreement also required defendant to waive his right to appeal.Defendant thereafter pleaded guilty to the charged crime, and Supreme Court imposed thecontemplated sentence. This appeal ensued.
We agree with defendant that his waiver of the right to appeal was invalid. Supreme Courtfailed to explain the separate and distinct nature of the waiver to defendant, and the court's briefinquiry, wherein defendant was asked, "[D]o you understand you are waiving your right toappeal, which means it ends here; you can't go to a higher court," fell short of ensuring thatdefendant appreciated the right that he was relinquishing and understood the consequencesthereof (see People v McClain, 161AD3d 1457, 1457-1458 [2018]; People v Braye, 161 AD3d 1456, 1457 [2018]; People v Hart, 160 AD3d 1137,1138 [2018]). Although defendant also executed a terse written waiver, such waiver wasexecuted after defendant was sentenced (see People v Thompson, 157 AD3d 1141, 1141 [2018]), and thecourt failed to ascertain whether defendant had read the waiver, understood its contents and/orhad discussed the ramifications thereof with counsel (see People v Cotto, 156 AD3d 1063, 1063 [2017]; People v Metayeo, 155 AD3d1239, 1240 [2017]; People vOrtiz, 153 AD3d 1049, 1049 [2017]). Under these circumstances, we find that defendantdid not knowingly, intelligently and voluntarily waive his right to appeal (see e.g. People v Herbert, 147 AD3d1208, 1208-1209 [2017]).
Given the invalid waiver, defendant's challenge to the severity of his sentence is notprecluded (see People v Levielle,161 AD3d 1391, 1392 [2018]), but we nonetheless find his argument on this point to belacking in merit. The sentence was in accordance with the plea [*2]agreement and, despite defendant's age at the time of the offenseand his expressed remorse, the fact remains that defendant stabbed the victim to death with aknife during the course of what defendant conceded was a planned robbery. Accordingly, we findno extraordinary circumstances or abuse of discretion warranting a reduction of the sentenceimposed in the interest of justice (seee.g. People v Blanco, 156 AD3d 945, 946 [2017]).
Garry, P.J., Egan Jr., Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.