People v Deming

2021 NY Slip Op 00458 [190 AD3d 1193]

January 28, 2021

Appellate Division, Third Department

As corrected through Wednesday, March 3, 2021

[*1]

The People of the State of New York,Respondent, v Daniel D. Deming, 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.), renderedSeptember 6, 2018, convicting defendant upon his plea of guilty of the crime of robbery in thethird degree (two counts).

Defendant waived indictment and agreed to be prosecuted pursuant to two superior courtinformations—each charging him with one count of robbery in the third degree. ThePeople extended a plea offer whereby defendant would plead guilty to the charged crimes withthe understanding that he would be sentenced—as a second felony offender—to aprison term of 21/2 to 5 years upon each conviction, said sentences to be servedconsecutively. The plea agreement also required defendant to waive his right to appeal, andCounty Court agreed to recommend defendant for participation in a shock incarceration program.Defendant pleaded guilty in conformity with the agreement, and the matter was adjourned forsentencing. Following an additional adjournment to afford defendant the opportunity to file amotion to withdraw his plea, which he ultimately elected not to do, defendant again pleadedguilty (at the People's request) to the charged crimes, and County Court imposed thecontemplated terms of imprisonment. This appeal ensued.

The People concede that defendant's waiver of the right to appeal is invalid, as the writtenwaiver runs afoul of People vThomas (34 NY3d 545 [2019]), and County Court's brief oral colloquy with defendantwas—in our view—insufficient to "permit[ ] the conclusion that the counseleddefendant understood the distinction that some appellate review survived" (id. at 561; see People v Brunson, 185 AD3d1300, 1300 n [2020], lv denied 36 NY3d 928 [2020]; People v Martin, 179 AD3d 1385,1386 [2020]). Accordingly, defendant's challenge to the perceived severity of his sentence is notprecluded (see People v Gonzalez,186 AD3d 1832, 1832 [2020]). That said, we find no extraordinary circumstances or abuseof discretion warranting a reduction of the agreed-upon sentence imposed (see People v Burnell, 183 AD3d931, 932 [2020], lv denied 35 NY3d 1043 [2020]; People v Cook, 171 AD3d 1361,1361-1362 [2019]). Accordingly, the judgment of conviction is affirmed.

Egan Jr., J.P., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.