| People v Ghee |
| 2021 NY Slip Op 03875 [195 AD3d 1244] |
| June 17, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Ghee, Also Known as G, 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 January 15, 2019 inSchenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale ofa controlled substance in the third degree.
In full satisfaction of a consolidated indictment, defendant agreed to plead guilty to one countof criminal sale of a controlled substance in the third degree with the understanding that hewould be sentenced as a second felony offender to a prison term of 6
We agree with defendant that his waiver of the right to appeal was invalid. The writtenwaiver of appeal executed by defendant was overbroad in that, among other defects, it purportedto erect an absolute bar to a direct appeal and erroneously indicated that defendant's waiver of theright to appeal included his right to pursue certain collateral relief in state or federal courts (see People v Bisono, 36 NY3d1013, 1017-1018 [2020]; People vFigueroa, 192 AD3d 1269, 1270 [2021]; People v Anderson, 184 AD3d 1020, 1020-1021 [2020], lvdenied 35 NY3d 1064 [2020]; seealso People v DeJesus-Ocasio, 192 AD3d 1264, 1264 [2021]). Supreme Court's brieforal colloquy with defendant fell short of curing such defects, as the court failed to ensure "thatdefendant understood the distinction that some appellate review survived the appeal waiver" (People v Lafond, 189 AD3d 1824,1825 [2020] [internal quotation marks and citation omitted], lv denied 36 NY3d 1121 [2021]; see People vAvera, 192 AD3d 1382, 1382 [2021]; People v Figueroa, 192 AD3d at1270).
In light of the invalid appeal waiver, defendant's challenge to the perceived severity of thesentence imposed is not precluded. That said, the record reflects that defendant received only sixmonths more than the minimum sentence that could be imposed upon his conviction of criminalsale of a controlled substance in the third degree (see Penal Law § 70.70 [4][b] [i]). Although defendant did receive the maximum period of postrelease supervision thatcould be imposed in this regard (see Penal Law § 70.45 [2] [d]), SupremeCourt expressly stated that such term was not punitive in nature but was instead designed toprovide defendant with the structure necessary to aid him in making a lawful transition to societyfollowing his release from prison. Against that backdrop, and in light of defendant's criminalhistory, we discern no extraordinary circumstances or abuse of discretion warranting a reductionof the sentence (see People v Avera, 192 AD3d at 1383; People v Barzee, 190 AD3d 1016,1021-1022 [2021], lv denied 36 NY3d 1094 [2021]). Accordingly[*2], the judgment of conviction is affirmed.
Garry, P.J., Egan Jr., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.