| People v Grainger |
| 2021 NY Slip Op 06009 [199 AD3d 1070] |
| November 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jennifer A. Grainger, Appellant. |
Craig Meyerson, Peru, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (Lawliss, J.),rendered January 2, 2019, convicting defendant upon her plea of guilty of the crime of robbery inthe second degree.
Defendant waived indictment and pleaded guilty to a superior court information charging herwith robbery in the second degree and purportedly waived her right to appeal. She was sentenced,as a second felony offender, in accordance with the terms of the plea agreement to a prison termof six years followed by five years of postrelease supervision. Defendant appeals.
Defendant maintains that her waiver of the right to appeal is invalid. We agree. During theplea colloquy, County Court advised defendant that, as part of the plea agreement, she "wouldalso have to waive [her] right to appeal or waive [her] right to seek post-conviction remedies,"without further elaboration. Thereafter, defendant and her counsel signed a waiver of appeal inopen court that specified that defendant was waiving her "right to appeal, as well as allpost-conviction remedies" and that, by waiving her right to appeal, the guilty plea and subsequentsentence "would conclude [her] case." This overboard language erroneously speaks to anabsolute bar of potential appellate and collateral remedies (see People v Thomas, 34 NY3d 545, 566 [2019]). County Courtinquired whether defendant had reviewed the written waiver with her attorney and understood thedocument, eliciting a one-word response to each question, but made no attempt to signal thatdefendant retained the right to appeal certain fundamental issues and pursue collateral relief(see id. at 566). Not to be overlooked is the fact that the written waiver specified thatdefendant was "not under the influence of any drugs . . . or medication," when, infact, she clarified during the plea colloquy that she had taken three prescribed medications.Although both defendant and her counsel duly confirmed for the court that she was of clear mind,this discrepancy raises a concern as to the adequacy of defendant's review and understanding ofthe written waiver. Given the limited colloquy, the court's misstatement as to postconvictionremedies and the overbroad written waiver, we are not persuaded that defendant knowingly,intelligently and voluntarily waived her right to appeal (see People v Bisono, 36 NY3d 1013, 1017-1018 [2020]; People v Aponte, 190 AD3d 1031,1032 [2021], lv denied 37 NY3d 953 [2021]).
However, defendant's challenge to the voluntariness of the plea is unpreserved as the recorddoes not reflect that she made an appropriate postallocution motion and the narrow exception tothe preservation rule is inapplicable for defendant openly acknowledged her commission of therobbery (see People v Stanley, 189AD3d 1818, 1818 [2020]; People vBrito, 184 AD3d 900, 901 [2020]). Furthermore, we decline defendant's request that wetake corrective action and vacate the plea in the interest of justice (see People [*2]v Wheeler, 128 AD3d 1177, 1178 [2015]). Nor do we findthe agreed-upon sentence imposed harsh or excessive.
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.