| People v Ward |
| 2022 NY Slip Op 02458 [204 AD3d 1172] |
| April 14, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jamelle Ward, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Hogan, J.), rendered July 25, 2019 inSchenectady County, convicting defendant upon his plea of guilty of the crime of criminalpossession 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 as charged in the top count, admitting that he had possessed aloaded firearm. Pursuant to the plea agreement, which required a waiver of appeal, SupremeCourt imposed the agreed-upon prison term of nine years to be followed by five years ofpostrelease supervision, as an acknowledged second felony offender. Defendant appeals.
Initially, we agree with defendant that his waiver of appeal is not valid. The written appealwaiver executed by defendant during the plea allocution is overly broad in several respects,including erroneously purporting to erect an absolute bar to a direct appeal and indicating that theappeal waiver precludes him from pursuing collateral relief in state and federal courts (see People v Bisono, 36 NY3d1013, 1017-1018 [2020]; People vThomas, 34 NY3d 545, 565-566 [2019]; People v Anthony, 201 AD3d 1028, 1029 [2022]; People v Ghee, 195 AD3d 1244,1244 [2021], lv denied 37 NY3d 992 [2021]; People v Gamble, 190 AD3d 1022, 1024 [2021], lv denied36 NY3d 1098 [2021]). Moreover, the defects were not cured by the court's brief oral colloquyregarding the waiver of appeal.
In light of the invalid waiver of appeal, defendant is not precluded from challenging theperceived severity of the agreed-upon sentence (see People v Lopez, 6 NY3d 248, 256 [2006]). However, defendanthas an extensive criminal history that includes five prior felonies and the indicted crimes werecommitted while he was on parole. Notably, the negotiated sentence avoided potential persistentfelony offender sentencing and consecutive sentences for the distinct charged crimes (seePenal Law §§ 70.10, 70.25 [2]), and the prison term imposed was in the lowerrange of the permissible sentence for a second felony offender for this class C violent felony(see Penal Law §§ 70.02 [1] [b]; 70.06 [3] [c]; 265.03 [3]). Therebeing no extraordinary circumstances or abuse of discretion, we decline defendant's request toreduce the sentence in the interest of justice (see CPL 470.15 [3] [c]; [6] [b]; People v Lenahan, 201 AD3d1255, 1256 [2022]).
Garry, P.J., Lynch, Clark, Colangelo and McShan, JJ., concur. Ordered that the judgment isaffirmed.