| People v Moore |
| 2022 NY Slip Op 00338 [201 AD3d 1209] |
| January 20, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua P. Moore, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.),rendered January 4, 2019, convicting defendant upon his plea of guilty of the crime of assault inthe first degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with assault in the first degree and agreed to waive his right to appeal. Prior to sentencing,defendant moved to withdraw his plea, alleging, among other things, that he did not understandthe consequences of pleading guilty. County Court denied the motion and subsequently sentenceddefendant, a second felony offender, to the agreed-upon prison term of 12 years followed by fiveyears of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that the waiver of the right to appeal is invalid. During theplea colloquy, County Court briefly explained to defendant that the waiver of the right to appeal,which was a term of the plea agreement, meant that, upon sentencing, "it would be the end of thecourt proceedings connected to this case." Although defendant indicated that he understood andhad no questions for the court or his counsel, there was no further discussion regarding the rightto appeal. In addition, the written waiver executed by defendant contains overbroad language inthat it purports to waive his appellate rights to all potential state and federal matters, as well asany collateral matters (see People vThomas, 34 NY3d 545, 566 [2019]). The written appeal waiver also inaccuratelyindicates that defendant, who was on various prescription medication, was not under theinfluence of any drugs or medication, which "discrepancy raises a concern as to the adequacy ofdefendant's review and understanding of the written waiver" (People v Grainger, 199 AD3d 1070, 1071 [2021]). Given the brieforal colloquy and overbroad written waiver, which signaled a complete bar to taking an appeal,we find that defendant's waiver of the right to appeal was not knowing, voluntary and intelligent(see People v Bisono, 36 NY3d1013, 1017-1018 [2020]; People vHyson, 197 AD3d 1439, 1439 [2021], lv denied 37 NY3d 1146 [2021]; People vMayeaux, 197 AD3d 1443, 1444 [2021], lv denied 37 NY3d 1147 [2021]; People vMayo, 195 AD3d 1313, 1314 [2021]).
As the appeal waiver is invalid, defendant's challenge to the severity of the sentence is notforeclosed (see People v Beach, 197AD3d 1440, 1441 [2021]; People v Mayo, 195 AD3d at 1314). Nevertheless, we areunpersuaded by defendant's contention that, given his mental health issues and disadvantagedchildhood, the agreed-upon sentence is harsh or excessive. A review of the record does notreflect any abuse of discretion or extraordinary circumstances warranting a modification of thesentence in the interest of justice (seePeople v Fisher, 181 AD3d 1051, 1053 [2020]; People v Mitchell, 166 AD3d 1233, 1234 [2018], lv denied33 NY3d 979 [2019]).
Defendant also contends that his guilty plea [*2]was notknowing, voluntary and intelligent because County Court did not advise him of his right to a jurytrial or his privilege against self-incrimination. Such contention—which is preserved forour review given defendant's motion to withdraw his plea—is belied by the record.Although trial courts are not required to adhere to a mandatory catechism prior to accepting adefendant's plea, "there must be an affirmative showing on the record that the defendant waivedhis [or her] constitutional rights" (Peoplev Tyrell, 22 NY3d 359, 365 [2013] [internal quotation marks and citations omitted]).The record reflects that the court advised defendant during the plea proceeding that, by pleadingguilty, he was giving up his right "to take the case to trial" where defendant could cross-examinewitnesses, "testify [himself], if [he] wanted to" and call witnesses on his behalf. The court furtherexplained that, by pleading guilty, he is giving up his right to require the People to prove "to ajury" that he is guilty beyond a reasonable doubt. In view of the foregoing, we find that the courtsufficiently apprised defendant of his rights to a jury trial and against self-incrimination and thatdefendant "intelligently and understandingly waived [those] constitutional rights" (People v Conceicao, 26 NY3d375, 383 [2015]). As such, we are satisfied that defendant entered a knowing, voluntary andintelligent guilty plea (see People vNichols, 194 AD3d 1114, 1115 [2021], lv denied 37 NY3d 973 [2021]; People v Griffin, 165 AD3d 1316,1317 [2018]).
Garry, P.J., Lynch and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.