| People v Anderson |
| 2020 NY Slip Op 03571 [184 AD3d 1020] |
| June 25, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Malik Anderson, Also Known as M,Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered October 30, 2017, convicting defendant upon his plea of guilty of the crime ofattempted murder in the second degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to attempted murder inthe second degree and purportedly waived the right to appeal. The plea agreement provided that,subject to certain conditions, defendant would be sentenced to a determinate prison term withinthe range of 10 to 12 years. County Court thereafter sentenced defendant to 10 years in prison, tobe followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that his waiver of the right to appeal was not knowing, intelligent andvoluntary, and we agree. An appeal waiver is not "knowingly or voluntarily made in the face oferroneous advisements warning of absolute bars to the pursuit of all potential remedies, includingthose affording collateral relief on certain nonwaivable issues in both state and federal courts"(People v Thomas, 34 NY3d545, 566 [2019]). During the plea colloquy, County Court informed defendant that theappellate rights that he was waiving were listed on a written appeal waiver. The written waiver,which was signed by defendant, stated that defendant was waiving his "right to appeal from anyother matters for which [he] may have an appeal as of right or otherwise in any [s]tate or[f]ederal court, or that I may collaterally attack pursuant to [CPL articles 330 or 440], or through[w]rits of [c]orum [n]obis or [h]abeas [c]orpus, or any other manner, in any [s]tate or [f]ederalcourt." In light of this overbroad language, and the lack of any indication that defendant, a firsttime felony offender, understood that he retained the right to some appellate review, we find thatdefendant did not knowingly, intelligently and voluntarily waive the right to appeal (seeid. at 566; People v Barrales,179 AD3d 1313, 1314-1315 [2020]; compare People v Martin, 179 AD3d 1385, 1386 [2020]).
To the extent that defendant argues that his plea was not voluntarily entered, he failed topreserve this claim by an appropriate postallocution motion, and the narrow exception to thepreservation rule was not triggered here (see People v Almonte, 179 AD3d 1222, 1224 [2020], lvdenied 35 NY3d 940 [2020]; Peoplev Lobao, 178 AD3d 1238, 1238-1239 [2019], lv denied 35 NY3d 971 [2020]).Were this issue properly before us, we would find that the record establishes that defendantentered a knowing, intelligent and voluntary plea (see e.g. People v Haenelt, 161 AD3d 1489, 1490 [2018], lvdenied 31 NY3d 1148 [2018]). Finally, contrary to defendant's contention, we do not find thesentence to be harsh or excessive. Although the plea agreement contemplated that defendantcould be sentenced to a prison term of up to 12 years, County Court sentenced defendant to 10years in prison. We find no abuse of discretion in this sentencing determination or extraordinarycircumstances warranting a reduction of the sentence (see People v White, 163 AD3d 1358, 1358-1359 [2018], lvdenied 32 NY3d 1009 [2018]; People v Wolcott, 154 AD3d 1001, 1002 [2017], lv denied31 NY3d 1089 [2018]).
Garry, P.J., Lynch, Devine and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.