Opinion
112454
07-21-2022
The PEOPLE of the State of New York, Respondent, v. Rhaeqhuan MONT, Also Known as Ray Ray, Appellant.
Craig Meyerson, Peru, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Craig Meyerson, Peru, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered February 11, 2020, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.
In 2019, defendant and his codefendant were charged in a six-count indictment with various crimes stemming from their involvement in the theft of a vehicle. In satisfaction of the charges against him, defendant pleaded guilty to attempted robbery in the second degree. Pursuant to the terms of the plea agreement, defendant purported to waive his right to appeal, both orally and in writing. Defendant was thereafter sentenced, as a second felony offender, to the agreed-upon prison term of four years, followed by five years of postrelease supervision. Defendant appeals.
We affirm. Initially, defendant is correct that his waiver of the right to appeal is invalid. Defendant's written appeal waiver mischaracterized the rights to be waived, using overbroad language advising that the waiver was a complete bar to a direct appeal, as well as to collateral relief on certain nonwaivable issues in both state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Harris, 201 A.D.3d 1030, 1030, 156 N.Y.S.3d 766 [2022], lvs denied 38 N.Y.3d 950, 952, 954, 165 N.Y.S.3d 469, 185 N.E.3d 990 [2022] ; People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 [2021] ; People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ). During its limited oral colloquy, County Court relied wholly upon the written waiver in explanation of the nature and scope of the rights to be waived and, thus, "failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver" ( People v. Mayo, 195 A.D.3d at 1314, 149 N.Y.S.3d 379 [internal quotation marks and citations omitted]; see People v. Williams, 203 A.D.3d 1398, 1398–1399, 164 N.Y.S.3d 342 [2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022] ; People v. Harris, 201 A.D.3d at 1030, 156 N.Y.S.3d 766 ; People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 174 N.E.3d 350 [2021]). Although defendant is not precluded from challenging the severity of his sentence in light of his invalid appeal waiver (see People v. Lunan, 196 A.D.3d at 970, 148 N.Y.S.3d 408, 148 N.Y.S.3d ; People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [2021], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 206, 169 N.E.3d 564 [2021] ), the agreed-upon prison sentence, which was just one year above the minimum permissible (see Penal Law §§ 70.06[6][c] ; 110.00, 160.10), "was [not] unduly harsh or severe" ( CPL 470.15[6][b] ).
Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed.