| People v Gervasio |
| 2021 NY Slip Op 00455 [190 AD3d 1190] |
| January 28, 2021 |
| Appellate Division, Third Department |
[*1](January 28, 2021)
| The People of the State of New York,Respondent, v Kevin P. Gervasio, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), renderedJune 22, 2018, convicting defendant upon his plea of guilty of the crime of grand larceny in thefourth degree.
In full satisfaction of a two-count indictment and other pending charges, defendant agreed to plead guilty to one count of grand larceny in the fourth degree with the understanding that he would be sentenced to a prison term of 1� to 3 years. The plea agreement alsorequired defendant to waive his right to appeal. Following defendant's guilty plea, the matter wasadjourned for sentencing. Although defendant was arrested on other charges while on bailawaiting sentencing, County Court nonetheless imposed the agreed-upon term of imprisonment.This appeal ensued.
We agree with defendant that his waiver of the right to appeal was invalid. The writtenwaiver at issue here was "intended to be as broad as the law allows" and purported to"encompass[ ] all issues arising from this criminal proceeding." Although we have excusedoverly-broad written waivers where the court's oral colloquy with the defendant "still permit[ted]the conclusion that the counseled defendant understood the distinction that some appellate reviewsurvived" (People v Thomas, 34NY3d 545, 561 [2019]; see Peoplev Brunson, 185 AD3d 1300, 1300 n [2020], lv denied 36 NY3d 928 [2020]; People v Martin, 179 AD3d 1385,1386 [2020]), County Court's terse discussion of defendant's appellate rights fell short of drawingthat distinction. Accordingly, defendant's challenge to the severity of the sentence imposed is notprecluded. However, as defendant received the minimum sentence that could be imposed givenhis status as a second felony offender (see Penal Law § 70.06 [3] [e]; [4][b]), his claim that such sentence is harsh and excessive must fail (see People v Heverly, 165 AD3d1320, 1321 [2018], lv denied 32 NY3d 1112 [2018]).
Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.