| People v Anthony |
| 2022 NY Slip Op 00074 [201 AD3d 1028] |
| January 6, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christian Anthony, Appellant. |
Dana L. Salazar, East Greenbush, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered June 7, 2018in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminalsexual act in the first degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with criminal sexual act in the first degree and purportedly waived his right to appeal.Pursuant to the plea agreement, defendant was to be sentenced, as a second violent felonyoffender, to a prison term of 15 years followed by 25 years of postrelease supervision. However,shortly after defendant pleaded guilty, the Assistant District Attorney informed Supreme Courtand defense counsel that defendant's prior out-of-state convictions did not warrant defendant'sstatus as a second violent felony offender but, rather, a first felony offender. As such, the pleaagreement was modified to the extent of reducing the period of postrelease supervision to 20years. The modified plea agreement was set forth at sentencing without objection fromdefendant. Supreme Court then sentenced defendant to a prison term of 15 years followed by 20years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that the waiver of his right to appeal is invalid. The writtenwaiver of appeal was overbroad in that, among other defects, it purported to be an absolute bar totaking a direct appeal and erroneously indicated that defendant relinquished his right to pursue, inboth state and federal court, collateral relief on certain nonwaivable issues (see People v Bisono, 36 NY3d1013, 1017-1018 [2020]; People vMayo, 195 AD3d 1313, 1314 [2021]; People v Ghee, 195 AD3d 1244, 1244 [2021], lv denied 37NY3d 992 [2021]). The defect was not cured by Supreme Court's brief oral colloquy, which alsosuggested that the waiver barred any direct appeal and did not "ensure that defendant understoodthe distinction that some appellate review survived the appeal waiver" (People v Mayo,195 AD3d at 1314 [internal quotation marks and citations omitted]).
Notwithstanding the invalid appeal waiver, defendant's challenge to the voluntariness of theplea is unpreserved as the record does not reflect that defendant objected to the amendedsentence reducing the period of postrelease supervision following his downward classification asa first felony offender nor did he make an appropriate postallocution motion (see People v Lamotte, 184 AD3d907, 907 [2020]). Furthermore, the record does not demonstrate that the narrow exception tothe preservation requirement is applicable (see People v Haynes, 194 AD3d 1310, 1310 [2021]; People v Guerrero, 194 AD3d1258, 1260 [2021], lv denied 37 NY3d 992 [2021]).
Defendant's contentions that he was improperly sentenced as a second felony offender andthat the sentence imposed was harsh and excessive—which are not precluded given theinvalid appeal waiver—are without merit. The record clearly reflects that defendant wasinformed [*2]of the downward change to his status to a firstfelony offender, that the period of postrelease supervision was amended in order to be consistentwith his first felony offender status and that Supreme Court made amendments to documentsduring sentencing to ensure that they reflected defendant's status as a first felony offender. Theprison term, although not reduced in the amended sentencing offer for reasons explained by theAssistant District Attorney in his letter to the court and defendant, was accepted by defendantwithout objection and comports with the statutory parameters for a first felony offenderconvicted of criminal sexual act in the first degree. Finally, we find no abuse of discretion orextraordinary circumstances warranting a reduction of the sentence imposed in the interest ofjustice (see People v Coleman, 178AD3d 1149, 1149 [2019]).
Garry, P.J., Lynch, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.