| People v Thomas |
| 2021 NY Slip Op 00337 [190 AD3d 1157] |
| January 21, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Malcolm Thomas, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedAugust 10, 2018, convicting defendant upon his plea of guilty of the crime of criminal possessionof a weapon in the second degree.
In satisfaction of a two-count indictment stemming from the possession of a loaded weapon,defendant pleaded guilty to criminal possession of a weapon in the second degree. Under theterms of the plea agreement, defendant was required to waive his right to appeal and executed awritten waiver of appeal in court. County Court committed to imposing a prison term of sixyears, to be followed by five years of postrelease supervision. Following an evidentiarysentencing hearing, County Court imposed a lesser prison term of four years to be followed byfive years of postrelease supervision. Defendant appeals.
We affirm. Defendant's sole contention on appeal is that his waiver of appeal was invalid,which he argues rendered his guilty plea invalid and requires that he be given the opportunity towithdraw his guilty plea and proceed to trial.[FN*] Upon review, we are persuaded that defendant'swaiver of appeal was knowing, voluntary and intelligent (see People v Thomas, 34 NY3d 545, 559-564 [2019]; People v Bradshaw, 18 NY3d 257,264-265 [2011]; People v Lopez, 6NY3d 248, 256 [2006]). To that end, the record reflects that defendant was repeatedlyadvised that a waiver of appeal was a condition of the plea agreement and that he agreed to thatcondition, indicating that he understood it. County Court carefully explained the right to appealand the appellate process and made clear that the waiver of appeal was a separate, additionalrequirement of the plea agreement, which was distinct from the trial-related rights that he hadbeen advised were automatically forfeited by his guilty plea (see People v Lopez, 6 NY3dat 256). Defendant also signed a written waiver of appeal and assured the court that he hadreviewed it with counsel, understood and agreed to its terms and had no questions about therights that he was giving up. The written waiver expressly provided that it applied "to all legalissues that can be waived under the law," supplying examples of the types of issues that would beprecluded; although the allocution and written waiver did not expressly state that certainappellate issues survive an appeal waiver, we are satisfied that "the counseled defendantunderstood the distinction that some appellate review survived" (People v Thomas, 34NY3d at 561; accord People vHernandez, 188 AD3d 1357, 1357 [2020]; see People v Martin, 179 AD3d 1385, 1386 [2020]).
With regard to defendant's argument that County Court mischaracterized his appellate rightsby suggesting that his waiver of appeal would preclude all appellate claims, this contention isunsupported by the record. The remarks in issue were made while explaining to defendant theprocess before the trial court, when the court indicated that, after he pleaded guilty andwaived [*2]his right to appeal, "all that is left is your sentence.You can't do anything more." In context, the court's comments did not impermissibly suggest thatthe waiver of appeal would result in an absolute bar to taking a direct appeal or the pursuit ofother remedies (see People v Thomas, 34 NY3d at 558-559; compare People v Anderson, 184AD3d 1020, 1020 [2020], lv denied 35 NY3d 1064 [2020]; People v Brito, 184 AD3d 900,900-901 [2020]; People v Barrales,179 AD3d 1313, 1314-1315 [2020]).
Moreover, contrary to defendant's central argument on appeal, even were the waiver ofappeal impermissibly broad and, therefore, invalid, it would not render his guilty plea involuntaryso as to require that we invalidate the plea or entitle him to withdraw his guilty plea. Where awaiver of appeal is challenged on appeal and deemed unenforceable, the remedy is to find thatthe defendant has not waived his or her appellate rights (see CPL 450.10); in that case,the appellate court will not enforce the appeal waiver and will proceed to address the appellateissues raised on appeal that are reviewable in the absence of a valid appeal waiver. Indeed, whenthe Court of Appeals has disagreed with the Appellate Division and found a waiver of appeal tobe invalid, it has reversed and remitted "for a determination of all issues raised but notdetermined below"; the Court has not vacated the guilty plea based upon the unenforceability ofthe appeal waiver (People v Lang, 34 NY3d 545, 566 [2019]; see People vBillingslea, 6 NY3d 248, 257 [2006]). Thus, an unenforceable appeal waiver does notautomatically void a knowing, voluntary and intelligent guilty plea. Further, a defendant maychallenge the voluntariness of a guilty plea regardless of the validity of a waiver of appeal(see People v Thomas, 34 NY3d at 558; People v Seaberg, 74 NY2d 1, 10[1989]). Defendant here raises no arguments that his guilty plea was involuntary other than basedupon the claimed invalidity of the waiver of appeal, which we have rejected. Defendant has notpointed to any aspect of the guilty plea itself that would warrant declaring his plea to be invalid,and we discern none (see People vHaffiz, 19 NY3d 883, 884 [2012]; People v Fiumefreddo, 82 NY2d 536, 543[1993]; see also People vConceicao, 26 NY3d 375, 382-384 [2015]; People v Sougou, 26 NY3d 1052, 1054-1055 [2015]). Defendantraises no other issues on appeal.
Egan Jr., J.P., Lynch, Mulvey, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered thatthe judgment is affirmed.
Footnote *:Defendant's additional request,apparently in the alterative, is that he be allowed to "retain[ ] the promised sentence and the rightto appeal." However, "a waiver of the right to appeal is not an absolute bar to the taking of afirst-tier direct appeal" and, thus, a defendant always retains the right to appellate review (People v Thomas, 34 NY3d 545,558 [2019]). Indeed defendant has exercised that right by bringing this appeal before this Courtand did not need to seek any relief from this Court to do so. Defendant's request to "retain[ ] thepromised sentence"—presumably referring to the lower four-year prison sentence imposedand not the higher six-year sentence to which County Court committed—does not requireappellate relief. Where a conviction is affirmed, this Court may only modify a sentence where itis illegal (or remit for resentencing) or where we are persuaded by a defendant's contention that itis harsh and excessive, neither of which are argued on this appeal (see CPL 450.30,470.15 [2] [c]; 470.20 [6]).