People v Mayo

2021 NY Slip Op 04057 [195 AD3d 1313]

June 24, 2021

Appellate Division, Third Department

As corrected through Wednesday, August 4, 2021

[*1]

The People of the State of New York,Respondent, v Rasheem Mayo, Also Known as Solo and JR,Appellant.

Marlene O. Tuczinski, Chatham, for appellant.

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

Reynolds Fitzgerald, J. Appeal from a judgment of the Supreme Court (Hogan, J.), renderedDecember 14, 2017 in Schenectady County, convicting defendant upon his plea of guilty of thecrimes of criminal sale of a controlled substance in the third degree and attempted arson in thesecond degree.

Defendant was charged in two separate indictments with arson in the second degree andcriminal sale of a controlled substance in the third degree (three counts) and criminal possessionof a controlled substance in the third degree (three counts). In full satisfaction thereof, defendantagreed to plead guilty to the reduced charge of attempted arson in the second degree and to onecount of criminal sale of a controlled substance in the third degree with the understanding that hewould be sentenced to a prison term of 31/2 years upon his arson conviction and toa prison term of four years upon his drug conviction—said sentences to run concurrentlyand to include periods of postrelease supervision. The plea agreement also required defendant towaive his right to appeal and included restitution in the amount of $300 to the local policedepartment for certain "buy money."

Defendant pleaded guilty in conformity with the plea agreement, and Supreme Courtthereafter sentenced defendant to a prison term of 31/2 years (followed by31/2 years of postrelease supervision) upon his conviction of attempted arson in thesecond degree and to a prison term of four years (followed by two years of postreleasesupervision) upon his conviction of criminal sale of a controlled substance in the third degree. Asoutlined in the plea agreement, Supreme Court also imposed restitution in the amount of $300.This appeal ensued.

We agree with defendant that his waiver of the right to appeal is invalid. The two writtenwaivers executed by defendant were overbroad, purported to erect an absolute bar to a directappeal, erroneously advised that the waiver of the right to appeal encompassed defendant's rightto seek certain collateral relief in state or federal courts and failed to indicate that certain issuessurvived such waiver (see People vBisono, 36 NY3d 1013, 1017-1018 [2020]; People v Figueroa, 192 AD3d 1269, 1269-1270 [2021]; People v Anderson, 184 AD3d1020, 1020-1021 [2020], lv denied 35 NY3d 1064 [2020]). Supreme Court's brieforal colloquy with defendant did not cure these 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 v Avera, 192AD3d 1382, 1382 [2021], lv denied 37 NY3d 953 [2021]; People v Figueroa, 192 AD3d at 1270).

In light of the invalid appeal waiver, defendant's challenge to the perceived severity of thesentence imposed is not precluded. That said, we note that defendant was sentenced to theminimum term of imprisonment that could be imposed [*2]uponhis conviction of attempted arson in the second degree (see Penal Law§ 70.02 [1] [b]; [3] [b]), and the sentence imposed upon his conviction of criminalsale of a controlled substance in the third degree was in the middle of the permissible statutoryrange (see Penal Law § 70.70 [2] [a] [i]), as was the longest period ofpostrelease supervision imposed (see Penal Law § 70.45 [2] [f]). The recordreflects that Supreme Court considered defendant's circumstances before imposing sentence, and,in light of defendant's criminal history, we discern no extraordinary circumstances or abuse ofdiscretion warranting a reduction of the sentence (see People v Avera, 192 AD3d at 1383;People v Barzee, 190 AD3d1016, 1021-1022 [2021], lv denied 36 NY3d 1094 [2021]).

As to the issue of restitution, defendant was apprised from the outset that restitution in thesum of $300 was part and parcel of the plea agreement. Despite being so advised, defendantneither requested a restitution hearing nor otherwise challenged the amount of restitution duringthe sentencing proceeding. Accordingly, defendant's challenge to the amount of restitutionimposed is unpreserved for our review (see People v Ryan, 176 AD3d 1399, 1401-1402 [2019], lvdenied 34 NY3d 1081 [2019]; People v Hunter, 175 AD3d 1601, 1603 [2019], lv denied34 NY3d 1078 [2019]; People vHaggray, 164 AD3d 1522, 1526 [2018], lv denied 32 NY3d 1111 [2018]), as isany argument regarding the sufficiency of the People's proof in this regard (compare People v Pleasant, 119 AD3d984, 986 [2014]). Defendant's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.

Lynch, J.P., Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.