| People v Mayeaux |
| 2021 NY Slip Op 05051 [197 AD3d 1443] |
| September 23, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jessie R. Mayeaux, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), renderedJuly 17, 2019, convicting defendant upon his plea of guilty of the crimes of attempted criminalsale of a controlled substance in the fourth degree and rape in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to two superior courtinformations charging him with attempted criminal sale of a controlled substance in the fourthdegree and rape in the third degree. The plea agreement contemplated that defendant would besentenced on the rape charge to a prison term of three years, to be followed by a period ofpostrelease supervision (hereinafter PRS) of between 3 and 10 years, and to a determinate term ofone year on the drug charge, to be followed by a one-year period of PRS, the sentences to runconsecutively.[FN*] Theplea agreement required a waiver of the right to appeal, and defendant executed written waiversof appeal during the plea allocution. Consistent with the terms of the agreement, defendant wassentenced to a three-year prison term on the rape conviction to be followed by 10 years of PRS,and to a consecutive one-year prison term on the drug conviction to be followed by one year ofPRS. Defendant appeals.
As defendant argues, and the People concede, defendant's waivers of appeal areunenforceable as they were overbroad in suggesting that they erected an absolute bar to taking adirect appeal, and County Court's colloquy was not sufficient to cure this defect (see People v Bisono, 36 NY3d1013, 1017 [2020]; People vThomas, 34 NY3d 545, 561, 565-566 [2019]; People v LaPierre, 195 AD3d 1301, 1303 [2021]; People v Nichols, 194 AD3d 1114,1116 [2021], lv denied 37 NY3d 973 [2021]; People v Gervasio, 190 AD3d 1190, 1191 [2021]). Accordingly,defendant's challenge to the severity of the aggregate sentence is not precluded (see People v Lopez, 6 NY3d 248,256 [2006]; People v Gervasio, 190 AD3d at 1191).
Defendant's guilty plea to rape in the third degree, which satisfied other related charges,stemmed from his conduct at age 37 in engaging in sexual intercourse on at least two occasionswith a 16-year-old girl, the daughter of his friend. Although County Court imposed the maximumperiod of PRS (see Penal Law § 70.45 [2-a] [a]), the term of imprisonmentimposed was less than the maximum authorized sentence (see Penal Law§ 70.80 [4] [a] [iv]). In arguing for leniency, defendant pointed to the fact that hissexual conduct was not nonconsensual and he accepted responsibility for his actions. However,the record reflects that even after the victim's parents warned defendant to stay away from thevictim and took away her cell phone to prevent them from communicating by text message, andpolice warned him to stay away from her, defendant provided the victim with a cell phone tofacilitate their communication and again engaged her in sexual relations despite her being underthe age of consent. Although defendant expressed [*2]remorse forhis actions and has no known criminal history, his actions violated a position of trust and had anenduring, harmful impact on the victim and her family. With regard to defendant's drug-relatedconviction, which stems from his sale of a narcotic preparation (see Penal Law§ 220.34 [1]), the one-year determinate sentence was lawful and less than themaximum permissible sentence (see Penal Law § 70.70 [2] [a] [iii]). Underthese facts, we decline to disturb the consecutive nature of the sentences given the separate anddistinct acts underlying the rape and drug charges and find no extraordinary circumstances orabuse of discretion warranting a reduction of the agreed-upon aggregate sentence in the interestof justice (see Penal Law § 70.25 [2]; People v Smith, 193 AD3d 1114, 1115 [2021]; People v Dirschberger, 185 AD3d1224, 1227 n [2020], lv denied 36 NY3d 1056 [2021]).
Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:The one-year PRS term mergeswith the longer term of PRS (see Penal Law § 70.45 [5] [c]).