Opinion
110675
12-16-2021
The PEOPLE of the State of New York, Respondent, v. Lewis HILTS, Appellant.
G. Scott Walling, Slingerlands, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Hogan, J.), rendered April 17, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of strangulation in the second degree.
Defendant pleaded guilty to a superior court information charging him with strangulation in the second degree and purportedly waived his right to appeal. In accordance with the terms of the plea agreement, Supreme Court sentenced defendant to two years in prison, to be followed by three years of postrelease supervision. Defendant appeals.
We affirm. Initially, we agree with defendant's contention that he did not validly waive the right to appeal. Defendant signed a written waiver that was overbroad in that it purported to effectuate a total bar to the pursuit of all potential remedies, including collateral relief in both state and federal courts (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Lunan, 196 A.D.3d 969, 969, 148 N.Y.S.3d 408 [2021] ). Moreover, a review of the plea colloquy reveals that Supreme Court failed to overcome this defect "by ensuring that defendant understood that some appellate rights survive the appeal waiver" ( People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [2021] ; see People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Lafond, 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 193, 169 N.E.3d 551 [2021] ). In light of the invalid appeal waiver, defendant's claim that the sentence is harsh and excessive is not precluded from our review. That said, the sentence was in accordance with the plea agreement and we discern no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Mosher, 191 A.D.3d 1170, 1171, 140 N.Y.S.3d 337 [2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021] ; People v. Morrow, 163 A.D.3d 1265, 1266, 80 N.Y.S.3d 559 [2018] ).
Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. ORDERED that the judgment is affirmed.