Opinion
112729
11-22-2023
The PEOPLE of the State of New York, Respondent, v. Norman BOOTH, Appellant.
Carolyn B. George, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Lynch, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered October 12, 2020, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). In 2020, defendant was charged in a four-count indictment with criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). Defendant subsequently pleaded guilty to the charged crimes with the understanding from County Court that he would be sentenced as a second felony offender to concurrent prison terms of two years on each count, to be followed by three years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. County Court imposed the agreed-upon sentence, and this appeal by defendant ensued.
Initially, the People concede, and we agree, that the waiver of the right to appeal is invalid. "The written waiver executed by defendant contained overbroad and inaccurate language, and County Court's oral explanation of the waiver ‘did not overcome these defects by ensuring that defendant understood that some appellate and collateral review survived’ " ( People v. Thompson, 216 A.D.3d 1370, 1370–1371, 188 N.Y.S.3d 277 [3d Dept. 2023], quoting People v. Puleski, 210 A.D.3d 1143, 1144, 175 N.Y.S.3d 917 [3d Dept. 2022] ; see People v. Faulkner, 217 A.D.3d 1143, 1143, 189 N.Y.S.3d 831 [3d Dept. 2023] ; People v. Faublas, 216 A.D.3d 1358, 1358, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023] ).
Notwithstanding the invalid appeal waiver, defendant's challenges to the voluntariness of the plea and the factual sufficiency of the plea allocution are not preserved for our review as the record does not reveal that defendant made an appropriate postallocution motion (see CPL 220.60[3] ; People v. Stevens, 217 A.D.3d 1280, 1280, 191 N.Y.S.3d 835 [3d Dept. 2023], lv denied 40 N.Y.3d 952, 195 N.Y.S.3d 679, 217 N.E.3d 700 [2023] ; People v. Hilliard, 214 A.D.3d 1259, 1260, 184 N.Y.S.3d 638 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 501, 213 N.E.3d 643 [2023] ; People v. Sanford, 171 A.D.3d 1405, 1406, 99 N.Y.S.3d 453 [3d Dept. 2019] ; People v. Atkinson, 124 A.D.3d 1149, 1150, 2 N.Y.S.3d 687 [3d Dept. 2015], lv denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ). "Further, defendant made no statements during the plea colloquy to trigger the narrow exception to the preservation requirement warranting further inquiry by County Court" ( People v. Stevens, 217 A.D.3d at 1280, 191 N.Y.S.3d 835 [citation omitted]; see People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). "In any event, were we to consider these issues, we would find them to be without merit as the record reflects that defendant's plea was knowing, voluntary and intelligent, the terms of which were sufficiently placed on the record prior to the plea allocution" ( People v. Stevens, 217 A.D.3d at 1280, 191 N.Y.S.3d 835 [citations omitted]). Further, defendant was not required to personally recite the elements of the underlying crimes, as his affirmative responses to the court's inquiry was sufficient (see People v. Goldstein, 12 N.Y.3d 295, 300–301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ; People v. Favreau, 174 A.D.3d 1226, 1227, 105 N.Y.S.3d 721 [3d Dept. 2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 631, 137 N.E.3d 1 [2019] ; People v. Johnson, 153 A.D.3d 1047, 1048, 59 N.Y.S.3d 866 [3d Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ). Finally, since defendant has already served the full period of incarceration, his contention that the court erred in denying his request for a three-month adjournment of sentencing due to the ongoing COVID–19 pandemic has been rendered academic.
Garry, P.J., Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.