| People v Harris |
| 2022 NY Slip Op 00075 [201 AD3d 1030] |
| January 6, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Marc Harris, Also Known as Merc and Smoke,Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 1,2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession ofa weapon in the second degree and purportedly waived his right to appeal. Supreme Courtsentenced defendant, a second felony offender, to a prison term of seven years followed by fiveyears of postrelease supervision. Defendant appeals.
We agree with defendant's contention that his waiver of the right to appeal was invalid. Thewritten appeal waiver executed by defendant was overbroad, as it indicated that the waiver was acomplete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in bothstate and federal courts (see People vBisono, 36 NY3d 1013, 1017 [2020]; People v Mayo, 195 AD3d 1313, 1314 [2021]; People v Ghee, 195 AD3d 1244,1244 [2021], lv denied 37 NY3d 992 [2021]). Furthermore, the oral colloquy wasinsufficient to cure the multiple mischaracterizations in the written waiver or to demonstrate thatdefendant understood the nature and consequences of the waiver of appellate rights (seePeople v Bisono, 36 NY3d at 1017; People v Ghee, 195 AD3d at 1244).
Notwithstanding the invalid appeal waiver, defendant's challenge to the voluntariness of theplea is nevertheless unpreserved as the record does not reflect that he made an appropriatepostallocution motion, and the plea colloquy reflects no statements by defendant that wouldtrigger the narrow exception to the preservation requirement (see People v Lopez, 71NY2d 662, 665-666 [1988]; People vHaynes, 194 AD3d 1310, 1310 [2021]). In the absence of a postallocution motion,defendant's contention that he received ineffective assistance of counsel affecting thevoluntariness of the plea is also unpreserved (see People v Brewster, 194 AD3d 1266, 1267 [2021], lvdenied 37 NY3d 970 [2021]; Peoplev Miller, 190 AD3d 1029, 1030 [2021]). As for defendant's challenge to theagreed-upon sentence as harsh and excessive, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence in the interest of justice (see People v Wilder, 196 AD3d861, 863 [2021]; People vGoldwire, 168 AD3d 1286, 1286 [2019], lv denied 33 NY3d 976 [2019]).
Garry, P.J., Egan Jr., Lynch and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.