People v DeJesus-Ocasio

2021 NY Slip Op 01444 [192 AD3d 1264]

March 11, 2021

Appellate Division, Third Department

As corrected through Wednesday, May 5, 2021

[*1]

The People of the State of New York,Respondent, v Noel DeJesus-Ocasio, Appellant.

Salvatore C. Adamo, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 31, 2017 inSchenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale ofa controlled substance in the third degree.

Defendant waived indictment and was charged in a superior court information with criminalsale of a controlled substance in the third degree. He pleaded guilty to this crime and purportedlywaived his right to appeal. In accordance with the terms of the plea agreement, he was sentencedas a second felony offender to 41/2 years in prison, followed by three years ofpostrelease supervision. Defendant appeals.

Initially, defendant contends that his waiver of the right to appeal was not knowing,voluntary and intelligent. Based upon our review of the record, we agree. " '[I]ndetermining whether the record demonstrates that a defendant understood an appeal waiver'sconsequences, proper considerations include the defendant's consultation with counsel andon-the-record acknowledgements of understanding, a written appeal waiver that supplements orclarifies the court's oral advice and the defendant's experience with the criminal justicesystem' " (People v Tomko,185 AD3d 1356, 1357 [2020], lv denied 35 NY3d 1116 [2020], quoting People v Thomas, 34 NY3d 545,560 [2019]). Here, although Supreme Court advised defendant of the separate and distinct natureof the right to appeal, it did not ascertain that defendant discussed it with counsel and that heunderstood its ramifications (see People v Tomko, 185 AD3d at 1357; People v Rodriguez, 185 AD3d1296, 1297 [2020]). In addition, the court did not confirm that defendant had read thewritten waiver, reviewed it with counsel and was aware of its provisions (see People vRodriguez, 185 AD3d at 1297; People v McKoy, 175 AD3d 1616, 1617 [2019], lv denied34 NY3d 1018 [2019]). We note that the written waiver was overly broad as it encompassedcertain nonwaivable rights, including the right to pursue CPL article 440 motions and/or writs oferror coram nobis (see People v Rodriguez, 185 AD3d at 1297; People v Martz, 181 AD3d 979,980 [2020], lv denied 35 NY3d 1047 [2020]; see also People v Bisono, 36 NY3d 1013, 1017-1018 [2020]). Inview of the foregoing, the appeal waiver was invalid and does not preclude defendant fromchallenging the severity of the sentence (see People v Tomko, 185 AD3d at 1357; People v Miller, 166 AD3d 1385,1386 [2018], lv denied 32 NY3d 1207 [2019]).

Nevertheless, we find that the sentence was neither harsh nor excessive. The sentenceimposed was agreed to by defendant as part of the plea agreement, and defendant, a secondfelony offender charged with a class drug B felony, was subject to a significantly longer prisonterm if convicted after trial (see Penal Law § 70.70 [3] [b] [i]).Consequently, we find no extraordinary circumstances or abuse of discretion warranting areduction of the sentence in the interest of justice (see People [*2]v Latifi, 171 AD3d1351, 1352 [2019]; People vTreceno, 160 AD3d 1216, 1216 [2018]; People v Bates, 146 AD3d 1075, 1076 [2017]).

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