| People v Barrales |
| 2020 NY Slip Op 00329 [179 AD3d 1313] |
| January 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Racheal Barrales, Appellant. |
Henry C. Meier III, Delmar, for appellant.
Meagan K. Galligan, Acting District Attorney, Monticello (Kristin L. Hackett ofcounsel), for respondent.
Devine, J. Appeals (1) from a judgment of the Supreme Court (Schick, J.), renderedSeptember 11, 2017 in Sullivan County, convicting defendant upon her pleas of guilty ofthe crimes of attempted criminal possession of a weapon in the second degree and grandlarceny in the fourth degree, and (2) by permission, from an order of said court, enteredSeptember 27, 2018, which denied defendant's motion pursuant to CPL 440.20 to setaside the sentence, without a hearing.
Defendant waived indictment, purportedly waived her right to appeal and pleadedguilty to a superior court information charging her with grand larceny in the fourthdegree. The parties realized that the agreed-upon sentence was illegal while sentencingwas pending and, in addition, defendant was arrested for new offenses. After furthernegotiations, an agreement was reached in which defendant stood by her initial guiltyplea upon the understanding that she would receive an agreed-upon prison sentence. Shealso waived indictment, purportedly waived her right to appeal and, in satisfaction of asecond superior court information, pleaded guilty to attempted criminal possession of aweapon in the second degree. In accordance with the terms of the agreement, SupremeCourt sentenced defendant, a second felony offender, to concurrent prison terms thatamounted to a total of 3
We initially consider the validity of defendant's appeal waivers. Defendant executedlargely identical written waivers stating that she gave up the right to raise "all issues thatmay validly be waived" on appeal—with no discussion as to what issues may notbe—and inaccurately stating that they encompassed her ability "to prosecute [any]appeal as a poor person and to have an attorney assigned in the event that [she is]indigent, and to submit a brief and/or have argument before the appellate court on anyissues." The written waivers further stated that defendant was giving up her right to seekother postconviction relief at the state or federal level, including CPL article 440 motionsand applications for writs of habeas corpus and error coram nobis. Defendantacknowledged in both waivers that she had consulted with counsel to her satisfaction andunderstood their terms, and she confirmed during both plea colloquies that sheunderstood the right to appeal to be separate and distinct from the ones she was forfeitingby pleading guilty and was giving that right up. There was no attempt during eithercolloquy, however, to clarify that an appeal waiver was not a total bar to her taking anappeal or seeking collateral relief (see People v Pacherille, 25 NY3d 1021, 1023 [2015];People v Callahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74NY2d 1, 11 [1989]). To the contrary, the People reiterated during the first plea colloquythat defendant was "foreclosed forever from challenging the competency of [her] pleaand sentence before this or any other state or federal appellate court," and Supreme Courtadvised defendant during the second plea colloquy that she was entirely giving up her"right to appeal . . . to any higher court."
It appears from the foregoing that defendant was well aware that the appeal waiversmeant the relinquishment of her right to raise issues upon a direct appeal, but was alsomisled to believe that they had broader effects. We have previously held that anoverbroad appeal waiver would remain knowing, intelligent and voluntary, but that anynonwaivable rights would be "excluded from [its] scope" (People v Gruber, 108 AD3d877, 878 [2013], lv denied 22 NY3d 956 [2013]; see People v Norton, 9 AD3d741, 742 [2004]; People vWagoner, 6 AD3d 985, 986 [2004]; People v Umber, 2 AD3d 1051, 1052 [2003], lvdenied 2 NY3d 747 [2004]). The Court of Appeals has recently advised, however,that an appeal waiver is not "knowingly or voluntarily made in the face of erroneousadvisements warning of absolute bars to the pursuit of all potential remedies, includingthose affording collateral relief on certain nonwaivable issues in both state and federalcourts" (People v Thomas, 34 NY3d 545, 566 [2019]). Accordingly, we are constrained to hold that defendant's appealwaivers are invalid given the confusion as to their impact.
Turning to the merits, we affirm. Defendant challenges the voluntariness of herpleas, but her apparent "failure to make a motion to withdraw [her] plea or vacate thejudgment renders this issue unpreserved for review" (People v Lopez, 51 AD3d 1210, 1211 [2008]; see People v Borden, 91 AD3d1124, 1126 [2012], lv denied 19 NY3d 862 [2012]). Were this issue properlybefore us, we would find that the record belies defendant's contention that the violentfelony override issued by Supreme Court was a part of the plea agreement or acomponent of the agreed-upon sentence that induced her to enter the guilty pleas (see People v Bennett, 144AD3d 697, 698 [2016]; People v Demick, 138 AD3d 1486, 1486 [2016], lvdenied 27 NY3d 1150 [2016]; cf. People v Ballato, 128 AD3d 846 [2015]). To the extentthat defendant raises any issue with regard to the denial of her CPL 440.20 motion, wefind that the motion was properly denied as the record fails to establish that the sentence"was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL440.20 [1]).
Lynch, J.P., Clark, Mulvey and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment and order are affirmed.