People v Dolder

2019 NY Slip Op 06025 [175 AD3d 753]

August 1, 2019

Appellate Division, Third Department

As corrected through Wednesday, October 2, 2019

[*1]

The People of the State of New York,Respondent, v Drake C. Dolder, Appellant.

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), forrespondent.

Appeal from a judgment of the County Court of Fulton County (Sira, J.), rendered May 22,2018, convicting defendant upon his plea of guilty of the crimes of criminal mischief in the thirddegree and escape in the third degree and the violation of driving while ability impaired byalcohol.

Defendant agreed to waive indictment and plead guilty to a superior court informationcharging him with criminal mischief in the third degree, driving while ability impaired by alcoholand escape in the third degree. The plea agreement, which also satisfied other pending charges intwo local courts, required defendant to waive his right to appeal. Following defendant's guiltyplea, County Court—consistent with the terms of the plea agreement—sentenceddefendant as a second felony offender to a prison term of 11/2 to 3 years upon hiscriminal mischief conviction, to time served upon his conviction of driving while abilityimpaired by alcohol and to a one-year period of incarceration upon his escapeconviction—all terms to be served concurrently. This appeal ensued.

We agree with defendant that his waiver of the right to appeal was invalid. County Court'sbrief colloquy with defendant, wherein the court advised defendant that he could challenge hisconviction "in a higher court," was insufficient to apprise defendant of the separate and distinctnature of the waiver of the right to appeal and to ensure that defendant understood the appellaterights that he was relinquishing (seePeople v Cook, 171 AD3d 1361, 1361 [2019]; People v Mitchell, 166 AD3d 1233, 1233 [2018], lv denied33 NY3d 979 [2019]; People vMallard, 163 AD3d 1350, 1350-1351 [2018], lv denied 32 NY3d 1066 [2018]).Although defendant also executed a written waiver of appeal, "County Court failed to ascertainwhether defendant had read the waiver, understood its contents and/or had discussed theramifications thereof with counsel" (People v Pittman, 166 AD3d 1243, 1244 [2018] [internal quotationmarks and citation omitted], lv denied 32 NY3d 1176 [2019]; accord People vMitchell, 166 AD3d at 1234; seePeople v Nealon, 166 AD3d 1225, 1225 [2018]). As the waiver of appeal is invalid,defendant is not precluded from challeng ing the perceived severity of his sentence (seePeople v Cook, 171 AD3d at 1361; People v Mitchell, 166 AD3d at 1234). However,upon reviewing the record, "we find no extraordinary circumstances or abuse of discretionwarranting a reduction of the sentence in the interest of justice" (People v Nealon, 166AD3d at 1226; see People v Cook, 171 AD3d at 1361-1362). Accordingly, the judgmentof conviction is affirmed.

Egan Jr., J.P., Lynch, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.