Opinion
112183
11-03-2022
The PEOPLE of the State of New York, Respondent, v. Henry FORD, Appellant.
Adam G. Parisi, Schenectady, for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered September 13, 2019 in Albany County, convicting defendant upon his plea of guilty of the crime of strangulation in the second degree (two counts).
Defendant was charged in an eight-count indictment with, among other crimes, attempted murder in the second degree and rape in the first degree. After initially rejecting a less advantageous plea offer, defendant was afforded the opportunity to plead guilty to two counts of strangulation in the second degree with the understanding that he would be sentenced upon each count to a prison term of five years followed by five years of postrelease supervision – said terms to be served consecutively. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and Supreme Court imposed the contemplated term of imprisonment.
The People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid. The written waiver of appeal executed by defendant contains overbroad language (see People v. Darby, 206 A.D.3d 1165, 1166, 170 N.Y.S.3d 279 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022] ; People v. Podeswa, 205 A.D.3d 1139, 1140, 167 N.Y.S.3d 640 [3d Dept. 2022], lv dismissed 38 N.Y.3d 1135, 172 N.Y.S.3d 857, 193 N.E.3d 522 [2022] ), and Supreme Court's brief oral colloquy was insufficient to establish that defendant appreciated the nature and ramifications of the waiver (see People v. Brewster, 194 A.D.3d 1266, 1267, 144 N.Y.S.3d 402 [3d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021] ; People v. Alexander, 174 A.D.3d 1068, 1068, 104 N.Y.S.3d 765 [3d Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019] ) and understood the distinction that some appellate review nonetheless survived (see People v. Jackson, 206 A.D.3d 1244, 1245, 169 N.Y.S.3d 747 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022] ; People v. Darby, 206 A.D.3d at 1166 ). As the appeal waiver is invalid, defendant's challenge to the perceived severity of his sentence is not precluded (see People v. Griffen, 200 A.D.3d 1195, 1196, 157 N.Y.S.3d 611 [3d Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 697, 181 N.E.3d 1125 [2022] ). That said, we discern no basis upon which to disturb the negotiated sentence imposed (see CPL 470.15[6][b] ). Despite the serious nature of defendant's conduct, defendant was afforded a very advantageous plea agreement, and Supreme Court imposed the agreed-upon sentence. Accordingly, the judgment of conviction is affirmed.
Egan Jr., J.P., Aarons, Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.