| People v Figueroa |
| 2021 NY Slip Op 01448 [192 AD3d 1269] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Herman Figueroa, Appellant. |
G. Scott Walling, Slingerlands, 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 June 7, 2018 inSchenectady County, convicting defendant upon his plea of guilty of the crime of attempted rapein the first degree.
Defendant pleaded guilty to attempted rape in the first degree and purportedly waived theright to appeal. Supreme Court sentenced defendant, as a second felony offender, to five years inprison, to be followed by 20 years of postrelease supervision. Defendant appeals.
Defendant contends that his appeal waiver was invalid. We agree. "An appeal waiver is not'knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars tothe pursuit of all potential remedies, including those affording collateral relief on certainnonwaivable issues in both state and federal courts' " (People v Anderson, 184 AD3d 1020, 1020 [2020], lvdenied 35 NY3d 1064 [2020], quoting People v Thomas, 34 NY3d 545, 566 [2019]). Here, the writtenwaiver signed by defendant indicated that the waiver was an absolute bar to any appeal and statedthat defendant was waiving the "right to appeal from any other matters for which I may have anappeal as of right or otherwise in any [s]tate or [f]ederal court, or that I may collaterally attackpursuant to [CPL articles 330 or 440], or through [w]rits of [c]orum [n]obis or [h]abeas [c]orpus,or any other manner, in any [s]tate or [f]ederal court." Supreme Court did not overcome thisoverbroad language by ensuring that defendant understood that some appellate and collateralreview survived the waiver. Accordingly, we find that defendant did not enter a knowing,intelligent and voluntary appeal waiver (see People v Thomas, 34 NY3d at 565-566;People v Anderson, 184 AD3d at 1020-1021; People v Barrales, 179 AD3d 1313, 1314-1315 [2020]). As todefendant's remaining claim that the sentence is harsh and excessive, we discern no abuse ofdiscretion or extraordinary circumstances warranting modification of the sentence in the interestof justice (see People v Brito, 184AD3d 900, 901 [2020]; People vRivera, 164 AD3d 1573, 1574 [2018], lv denied 32 NY3d 1177 [2019]).
Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.