| People v Hyson |
| 2021 NY Slip Op 05046 [197 AD3d 1439] |
| September 23, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Hyson, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 12, 2014 inSchenectady County, convicting defendant upon his plea of guilty of the crime of burglary in thesecond degree.
Defendant was charged in an indictment with burglary in the first degree, criminalobstruction of breathing or blood circulation and endangering the welfare of a child. Insatisfaction of the indictment, defendant pleaded guilty to the reduced charge of burglary in thesecond degree and purportedly waived the right to appeal. Supreme Court sentenced defendant to3
Initially, the People concede, and we agree, that defendant did not validly waive the right toappeal. "An appeal waiver is not 'knowingly or voluntarily made in the face of erroneousadvisements warning of absolute bars to the pursuit of all potential remedies, including thoseaffording collateral relief on certain nonwaivable issues in both state and federal courts' "(People v Anderson, 184 AD3d1020, 1020 [2020], lv denied 35 NY3d 1064 [2020], quoting People v Thomas, 34 NY3d 545,566 [2019]; see People v Barrales,179 AD3d 1313, 1314-1315 [2020]). Defendant signed a written waiver purporting toeffectuate a waiver of his right to seek postconviction relief at the state and federal level,including CPL article 440 motions and writs of habeas corpus and error coram nobis. Inasmuchas Supreme Court failed to clarify that an appeal waiver is not an absolute bar to defendant takingan appeal or seeking collateral relief, the appeal waiver is invalid (see People v Ghee, 195 AD3d1244, 1244 [2021], lv denied 37 NY3d 992 [2021]; People v Barrales, 179AD3d at 1314-1315). As such, defendant's remaining claim, that the amount of postreleasesupervision imposed was harsh and excessive, is properly before us. Although the underlyingcrime represented defendant's first conviction in over 11 years, in view of his otherwise lengthycriminal history, we find no extraordinary circumstances or abuse of discretion warranting areduction of the agreed-upon term of postrelease supervision in the interest of justice (see People v Washburn, 192 AD3d1267, 1268 [2021], lv denied 37 NY3d 961 [2021]; People v Weidow, 150 AD3d1488, 1488-1489 [2017]).
Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.