| People v Davis |
| 2021 NY Slip Op 06113 [199 AD3d 1123] |
| November 10, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jah-Juan Davis, Appellant. |
Marlene O. Tuczinski, Chatham, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Appeal from a judgment of County Court of Albany County (Carter, J.), rendered May 17,2017, convicting defendant upon his plea of guilty of the crime of criminal possession of aweapon in the second degree.
Defendant was indicted and charged with attempted murder in the second degree, attemptedassault in the first degree and criminal possession of a weapon in the second degree (two counts)following an incident wherein defendant fired a flare gun that had been modified to accept .22caliber ammunition. After undergoing a mental health evaluation and rejecting an initial pleaoffer, defendant pleaded guilty—in full satisfaction of the indictment—to one countof criminal possession of a weapon in the second degree with the understanding that he would besentenced to a prison term of eight years followed by five years of postrelease supervision. Theplea agreement also required defendant to waive his right to appeal.
At the conclusion of the plea colloquy, County Court warned defendant that if he "fail[ed] tocome to court without a good reason on [his] sentencing date," the court would not be bound bythe plea agreement and could impose the maximum term of imprisonment, which defendantpreviously had been advised was 15 years. Defendant failed to appear, and a bench warrant wasissued. When defendant was returned for sentencing, counsel indicated that defendant initiallyfailed to appear due to his unwillingness to leave his ailing grandfather, and defendant declinedthe opportunity to elaborate further. After noting that defendant had been advised of theconsequences of failing to appear for sentencing, County Court imposed an enhanced sentence ofnine years in prison followed by five years of postrelease supervision. Defendant appeals.
The People concede—and we agree—that defendant's waiver of the right toappeal is invalid, as "County Court failed to distinguish the waiver of the right to appeal from theother rights that defendant was forfeiting by pleading guilty and, further, neither adequatelyexplained the nature of the waiver nor ascertained defendant's understanding of the ramificationsthereof" (People v Alexander, 194AD3d 1261, 1262 [2021]; seePeople v Brewster, 194 AD3d 1266, 1267 [2021], lv denied 37 NY3d 970[2021]). Such deficiencies were not remedied by the written waiver of appeal executed bydefendant, as County Court "did not verify that defendant had read and understood the writtenappeal waiver or discussed it with counsel" (People v Brewster, 194 AD3d at 1267[internal quotation marks and citation omitted]; see People v Williams, 190 AD3d 1192, 1193 [2021]). Given theinvalid appeal waiver, defendant's claim that the sentence imposed is harsh and excessive is notprecluded (see People v Nelson, 196AD3d 972, 972 [2021], lv denied 37 NY3d 1028 [2021]). That said, we discern noextraordinary circumstances or abuse of discretion warranting a modification of the sentence inthe interest of justice—particularly [*2]given that thesentence imposed was well below the maximum term of imprisonment for a class C violentfelony (see Penal Law §§ 70.02 [1] [b]; [3] [b]; 265.03 [3]).
As for defendant's procedural challenge to the enhanced sentence, the record does not reflectthat defendant voiced any objection, requested a hearing or moved to withdraw his plea upon thisground (see People v Alexander, 194 AD3d at 1263). Accordingly, this issue isunpreserved for our review (see Peoplev Jones, 196 AD3d 974, 974 [2021]; People v Alexander, 194 AD3d at 1263),and we decline defendant's invitation to take corrective action in the interest of justice. Contraryto defendant's assertion, the lack of preservation was not attributable to the ineffective assistanceof counsel, as defendant was expressly advised that, should he fail to appear for sentencing"without a good reason," County Court would not be bound by the plea agreement and couldimpose the maximum prison term of 15 years (compare People v Barnes, 177 AD3d 1168, 1169 [2019]).Defendant's remaining arguments have been examined and found to be lacking in merit.
Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.