| People v Beach |
| 2021 NY Slip Op 05048 [197 AD3d 1440] |
| September 23, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Beach, Appellant. |
John Ferrara, Monticello, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kevin Mulryan of counsel), forrespondent.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), renderedOctober 5, 2018, convicting defendant upon his plea of guilty of the crime of criminal possessionof a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the third degreeand purportedly waived the right to appeal. County Court sentenced defendant, as a secondfelony offender, to nine years in prison, to be followed by three years of postrelease supervision.Defendant appeals.
The People concede, and we agree, that defendant did not validly waive the right to appeal."An appeal waiver is not 'knowingly or voluntarily made in the face of erroneous advisementswarning of absolute bars to the pursuit of all potential remedies, including those affordingcollateral 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 or federal level, includingCPL article 440 motions and writs of habeas corpus and error coram nobis. Further, CountyCourt did not overcome the overbroad written waiver by ensuring "that defendant understood thedistinction 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]). Accordingly, the appeal waiver is invalid (see People v Ghee, 195 AD3d 1244, 1244 [2021], lv denied37 NY3d 992 [2021]; People v Barrales, 179 AD3d at 1314-1315). In light of the invalidappeal waiver, defendant's contention that the sentence is harsh and excessive is not precluded.That said, the sentence was in accordance with the terms of the plea agreement, and we discernno extraordinary circumstances or abuse of discretion warranting a modification of the sentencein the interest of justice (see People vBrito, 184 AD3d 900, 901 [2020]; People v Alolafi, 170 AD3d 1379, 1380 [2019]).
Defendant also argues that counsel's affirmative response to the People's question during theplea colloquy as to whether counsel was satisfied "that defendant's plea and waiver of appeal areentered into by him knowingly, intelligently and voluntarily" constituted ineffective assistance ofcounsel. We disagree. "A defendant's right to counsel is adversely affected when his or herattorney, either voluntarily or at the court's urging, becomes a witness against him or her or ifcounsel makes remarks that affirmatively undermine a defendant's arguments" (People v Curry, 123 AD3d 1381,1382 [2014] [internal quotation marks, brackets and citations omitted], lv denied 25NY3d 950 [2015]). In our view, counsel's affirmation, made prior to the Court of Appeals [*2]2019 decision in People v Thomas (supra), did notconstitute him becoming a witness against or taking a position adverse to defendant (see People v Wise, 29 AD3d 1216,1217 [2006], lv denied 7 NY3d 852 [2006]; People v Price, 4 AD3d 254, 255 [2004], lv denied 2 NY3d804 [2004]). Moreover, County Court did not rely on counsel's affirmation, as the record reflectsthat County Court subsequently conducted a plea colloquy wherein defendant affirmed that heunderstood the ramifications of the plea and appeal waiver and that he was pleading guilty andwaiving the right to appeal voluntarily (see People v Curry, 123 AD3d at 1382-1383;People v Rodriguez, 189 AD2d 684, 685 [1993], lv denied 81 NY2d 892[1993]).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.