| People v Callender |
| 2018 NY Slip Op 05638 [164 AD3d 962] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rene R. Callender, Appellant. |
Cliff Gordon, Monticello, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Dooley, J.), renderedNovember 30, 2016, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the second degree.
In full satisfaction of a two-count indictment and other pending charges, defendant agreed toplead guilty to the reduced charge of attempted robbery in the second degree with theunderstanding that he would be sentenced to three years in prison followed by two years ofpostrelease supervision. The plea agreement also required defendant to waive his right to appeal.Defendant thereafter pleaded guilty to the reduced charge, which entailed him displaying a knifewhile attempting to procure money from a local merchant, and the matter was adjourned forsentencing—at which time, County Court indicated, the waiver of the right to appealwould be addressed. Following, among other things, defendant's execution of a written waiver ofappeal, County Court imposed the agreed-upon sentence. Defendant now appeals.
The People concede—and our review of the record confirms—that defendant'swaiver of the right to appeal was invalid. "Only a passing reference was made to the waiver priorto defendant pleading guilty, and at no time during the plea colloquy did County Court explaineither the nature of the waiver or the separate and distinct rights being forfeited thereby" (People v Borden, 91 AD3d 1124,1125 [2012] [citation omitted], lv denied 19 NY3d 862 [2012]). Additionally, neither theensuing discussion at the time of sentencing nor the written waiver of appeal that defendantultimately executed demonstrates that defendant understood the contents of the waiver, the natureof the right being forfeited or the consequences thereof (see People v Haenelt, 161 AD3d 1489, 1489 [2018]; People v Ortiz, 153 AD3d 1049,1049 [2017]). Under these circumstances, defendant did not knowingly, intelligently andvoluntarily waive his right to appeal (seee.g. People v Herbert, 147 AD3d 1208, 1208-1209 [2017]).
In light of the invalid waiver, defendant's challenge to the severity of the sentence imposed isnot precluded (see People vSteenberg, 161 AD3d 1453, 1453-1454 [2018]). That [*2]said, we find his claim to be without merit. "Given the nature of thiscrime and the favorable plea deal, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the agreed-upon sentence in the interest of justice" (People v Gutek, 151 AD3d 1281,1283 [2017] [citation omitted]; seePeople v Gillespie, 19 AD3d 878, 878 [2005]). Accordingly, the judgment of convictionis affirmed.
Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.