| People v Mitchell |
| 2018 NY Slip Op 07792 [166 AD3d 1233] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ricky F. Mitchell, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Chad W. Brown, District Attorney, Johnstown (Christopher M. Stanyon of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.),rendered August 9, 2016, convicting defendant upon his plea of guilty of the crime ofstrangulation in the second degree.
After he choked his teenage son in front of various family members, defendant wasindicted and charged with strangulation in the second degree, assault in the third degree,criminal obstruction of breathing or blood circulation and endangering the welfare of achild (three counts). In March 2016, defendant agreed to plead guilty to strangulation inthe second degree—in full satisfaction of the indictment and a possible violationof conditional release—in exchange for a prison term of three years followed bythree years of postrelease supervision. The plea agreement also included a waiver of theright to appeal. Defendant pleaded guilty as contemplated, and the matter was adjournedfor sentencing. Following additional adjournments and the denial of defendant's motionto withdraw his guilty plea, County Court imposed the agreed-upon prison term.Defendant now appeals.
Initially, we agree with defendant that his waiver of the right to appeal was invalid.County Court did not explain the separate and distinct nature of the waiver (see People v White, 163 AD3d1358, 1358 [2018], lv denied 32 NY3d 1009 [2018]; People v McClain, 161 AD3d1457, 1457-1458 [2018]; People v Whitted, 117 AD3d 1179, 1180 [2014], lvdenied 23 NY3d 1026 [2014]), and its brief inquiry, wherein defendant was askedwhether he understood that such waiver would mark "the end of the [c]ourtproceedings," thus precluding his ability to "take it up to a higher court to complainabout the way anything was handled," "fell short of ensuring that defendant appreciatedthe right that he was relinquishing and understood the consequences thereof" (People v Mallard, 163 AD3d1350, 1351 [2018]; seePeople v Brown, 159 AD3d 1149, 1149 [2018], lv denied 32 NY3d 935[2018]; People vThompson, 157 AD3d 1141, 1141 [2018]; People v Whitted, 117 AD3dat 1180). Additionally, although defendant [*2]executeda written waiver after reviewing the document with counsel, County Court "failed toascertain whether defendant had read the waiver, understood its contents and/or haddiscussed the ramifications thereof with counsel" (People v Mallard, 163 AD3dat 1351; see People v White, 163 AD3d at 1358; People v Brewster, 161 AD3d1309, 1310 [2018]; Peoplev Ortiz, 153 AD3d 1049, 1049 [2017]). As the waiver is invalid, defendant'schallenge to the severity of his sentence is not foreclosed (see People v Suddard, 164AD3d 950, 951 [2018]; People v Brown, 159 AD3d at 1149). That said, areview of the record reveals no extraordinary circumstances or abuse of discretionwarranting a reduction of the agreed-upon sentence (see generally People v Callender, 164 AD3d 962, 963[2018]; People v Ortiz, 153 AD3d at 1049).
Defendant's challenge to the voluntariness of his plea—although preserved forour review by defendant's postallocution motion—is lacking in merit. AlthoughCounty Court's plea colloquy could have been more expansive, the record reflects thatdefendant was advised of his Boykin rights, and the mere fact that County Court" 'failed to specifically enumerate all the rights to which [defendant] was entitledand to elicit from him a list of detailed waivers before accepting the guilty plea' "does not render defendant's plea invalid (People v Sullivan, 153 AD3d 1519, 1521 [2017] [ellipsisomitted], lv denied 30 NY3d 1064 [2017], quoting People v Tyrell, 22 NY3d359, 365 [2013]). Similarly, the fact that County Court apprised defendant of hismaximum sentencing exposure did not amount to coercion (see People v Lobaton, 140AD3d 1534, 1535 [2016], lv denied 28 NY3d 972 [2016]; People v Taylor, 82 AD3d1291, 1292 [2011], lv denied 16 NY3d 900 [2011]), and defendant'sassertion that the court pressured him to accept the plea offer is belied by both CountyCourt's statements on this point and the length of time afforded defendant to consider thePeople's multiple offers, as well as defendant's assurances that he had been givensufficient time to discuss the plea bargain with counsel (cf. People v Smith, 155 AD3d1244, 1245 [2017]).
Finally, although defendant indeed expressed some initial confusion as to theelements of strangulation in the second degree and a corresponding reluctance to admit tocertain conduct, County Court clarified the elements of the charged crime and explainedprecisely what would be required of defendant should he elect to plead guilty; afterconferring with counsel, defendant decided to go forward and unequivocally pleadedguilty to strangulation in the second degree. Under these circumstances, we are satisfiedthat defendant's plea was knowing, intelligent and voluntary (see People v Pixley, 150 AD3d1555, 1556 [2017], lv denied 30 NY3d 952 [2017]; cf. People v Howe, 164 AD3d951, 952 [2018]). Defendant's remaining contentions, including any challenge to thedenial of his motion to withdraw his plea, have been examined and found to be lacking inmerit. Accordingly, the judgment of conviction is affirmed.
McCarthy, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that thejudgment is affirmed.