| People v Mosher |
| 2021 NY Slip Op 01161 [191 AD3d 1170] |
| February 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert B. Mosher, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered October 1, 2018, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
Defendant waived indictment and agreed to be charged in a superior court information withsexual abuse in the first degree. In satisfaction thereof, defendant pleaded guilty and purportedlywaived his right to appeal. In accordance with the plea agreement, defendant was sentenced tosix years in prison, to be followed by 10 years of postrelease supervision. Defendant appeals.
Defendant asserts that the waiver of his right to appeal is invalid. We agree. A review of the record reflects that the written waiver of appeal signed by defendant contained language indicating that the waiver was an absolute bar to any appeal (see People v Gervasio, 190AD3d 1190, 1191 [2020]; People v Lafond, 189 AD3d 1824, 1825 [2020]). County Court did not overcome this overbroad language by ensuring that defendant understood that some appellate review survived the waiver, and we thus find that defendant did not knowingly, intelligently or voluntarily waive the right to appeal (see People v Lafond, 189 AD3d at 1825;People v Anderson, 184 AD3d1020, 1020-1021 [2020], lvs denied 35 NY3d 1064, 1068 [2020]). Accordingly, defendant's challenge to the severity of his sentence is not precluded. Upon consideration of the record, however, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon sentence in the interest of justice (see People v Deming, 190 AD3d 1193, 1194 [2020]; People v Burnell, 183 AD3d 931, 932 [2020], lv denied 35 NY3d 1043 [2020]).
Defendant further argues that his plea was not knowing, intelligent and voluntary becauseCounty Court failed to fully advise him of the constitutional rights that he was waiving bypleading guilty. This contention has not been preserved for our review, as the record does not reflect that defendant made an appropriate postallocutionmotion (see People v Conceicao, 26NY3d 375, 382 [2015]; People vCruz, 186 AD3d 932, 933 [2020], lv denied 35 NY3d 1112 [2020]), or that hemade any statements during the plea allocution that cast doubt on his guilt or otherwise calledinto question the voluntariness of his plea so as to trigger the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Haenelt, 161 AD3d 1489,1490 [2018], lv denied 31 NY3d 1148 [2018]). Upon review of the record, we decline totake corrective action in the interest of justice (see People v Howard, 190 AD3d 1108, 1109 [2021]; People vCruz, 186 AD3d at 933; comparePeople v Demkovich, 168 AD3d 1221, 1221 [2019]).
Egan Jr., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.