Opinion
110473
08-01-2019
The PEOPLE of the State of New York, Respondent, v. Drake C. DOLDER, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan, Albany of counsel), for appellant. Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan, Albany of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (Katherine Ehrlich of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER Defendant agreed to waive indictment and plead guilty to a superior court information charging him with criminal mischief in the third degree, driving while ability impaired by alcohol and escape in the third degree. The plea agreement, which also satisfied other pending charges in two local courts, required defendant to waive his right to appeal. Following defendant's guilty plea, County Court – consistent with the terms of the plea agreement – sentenced defendant as a second felony offender to a prison term of 1 ½ to 3 years upon his criminal mischief conviction, to time served upon his conviction of driving while ability impaired by alcohol and to a one-year period of incarceration upon his escape conviction – all terms to be served concurrently. This appeal ensued.
We agree with defendant that his waiver of the right to appeal was invalid. County Court's brief colloquy with defendant, wherein the court advised defendant that he could challenge his conviction "in a higher court," was insufficient to apprise defendant of the separate and distinct nature of the waiver of the right to appeal and to ensure that defendant understood the appellate rights that he was relinquishing (see People v. Cook , 171 A.D.3d 1361, 1361, 96 N.Y.S.3d 921 [2019] ; People v. Mitchell , 166 A.D.3d 1233, 1233, 86 N.Y.S.3d 681 [2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 222, 124 N.E.3d 711 [2019] ; People v. Mallard , 163 A.D.3d 1350, 1350–1351, 82 N.Y.S.3d 653 [2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ). Although defendant also executed a written waiver of appeal, "County Court failed to ascertain whether defendant had read the waiver, understood its contents and/or had discussed the ramifications thereof with counsel" ( People v. Pittman , 166 A.D.3d 1243, 1244, 86 N.Y.S.3d 347 [2018] [internal quotation marks and citation omitted], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 228 [2019] ; accord People v. Mitchell , 166 A.D.3d at 1234, 86 N.Y.S.3d 681 ; see People v. Nealon , 166 A.D.3d 1225, 1225, 88 N.Y.S.3d 283 [2018] ). As the waiver of appeal is invalid, defendant is not precluded from challenging the perceived severity of his sentence (see People v. Cook , 171 A.D.3d at 1361, 96 N.Y.S.3d 921 ; People v. Mitchell , 166 A.D.3d at 1234, 86 N.Y.S.3d 681 ). However, upon reviewing the record, "we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice" ( People v. Nealon , 166 A.D.3d at 1226, 88 N.Y.S.3d 283 ; see People v. Cook , 171 A.D.3d at 1361–1362, 96 N.Y.S.3d 921 ). Accordingly, the judgment of conviction is affirmed.
Egan Jr., J.P., Lynch, Mulvey, Rumsey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.