People v Kehn

2019 NY Slip Op 05232 [173 AD3d 1564]

June 27, 2019

Appellate Division, Third Department

As corrected through Wednesday, July 31, 2019

[*1]

The People of the State of New York,Respondent, v John W. Kehn, Appellant.

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.

Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.

Appeal from a judgment of the County Court of Cortland County (Burns, J.), renderedOctober 24, 2016, convicting defendant upon his plea of guilty of the crime of attempted assaultin the second degree.

Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted assault in the second degree. The charge stems from defendant'sactions in causing injuries to a police officer who was attempting to take him into custody on abench warrant. Pursuant to a negotiated plea agreement that included a waiver of appeal andsatisfied numerous other pending charges, defendant pleaded guilty to attempted assault in thesecond degree with the understanding that sentencing would be adjourned and he would beallowed to participate in a drug court treatment program. Upon successful completion of theprogram, defendant would receive five years of probation. If he failed to successfully complete orwere terminated from the program, he could be sentenced to a prison term of up to11/3 to 4 years. After three years of mixed success in the program, defendantvoluntarily withdrew from the program. County Court then imposed a prison sentence of 1 to 3years and ordered him to pay restitution as agreed. Defendant appeals.

We affirm. Initially, as the People concede, defendant's waiver of appeal was invalid. CountyCourt (Meldrim, J.) failed to advise him that the right to appeal is separate and distinct from therights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Alolafi, 170 AD3d 1379,1380 [2019]). The signed written waiver of appeal was similarly deficient, and the court alsofailed to ascertain that defendant had read it, understood its meaning or consequences or haddiscussed it with counsel (see People v Alolafi, 170 AD3d at 1380). Defendant istherefore not precluded from challenging his sentence as harsh and excessive, but the issue ismoot as defendant has already served his sentence and has been released (see People v Evans, 159 AD3d1226, 1227 [2018], lv denied 31 NY3d 1081 [2018]).

Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.