Opinion
110955
02-25-2021
The PEOPLE of the State of New York, Respondent, v. Robert B. MOSHER, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered October 1, 2018, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.
Defendant waived indictment and agreed to be charged in a superior court information with sexual abuse in the first degree. In satisfaction thereof, defendant pleaded guilty and purportedly waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to six years in prison, to be followed by 10 years of postrelease supervision. Defendant appeals.
Defendant asserts that the waiver of his right to appeal is invalid. We agree. A review of the record reflects that the written waiver of appeal signed by defendant contained language indicating that the waiver was an absolute bar to any appeal (see People v. Gervasio , 190 A.D.3d 1190, 1191, 136 N.Y.S.3d 813 [2021] ; People v. Lafond , 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [2020] ). County Court did not overcome this overbroad language by ensuring that defendant understood that some appellate review survived the waiver, and we thus find that defendant did not knowingly, intelligently or voluntarily waive the right to appeal (see People v. Lafond , 189 A.D.3d at 1825, 137 N.Y.S.3d 222 ; People v. Anderson , 184 A.D.3d 1020, 1020-1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 152 N.E.3d 1165 [2020] ). Accordingly, defendant's challenge to the severity of his sentence is not precluded. Upon consideration of the record, however, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon sentence in the interest of justice (see People v. Deming , 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [2021] ; People v. Burnell , 183 A.D.3d 931, 932, 123 N.Y.S.3d 728 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020] ).
Defendant further argues that his plea was not knowing, intelligent and voluntary because County Court failed to fully advise him of the constitutional rights that he was waiving by pleading guilty. This contention has not been preserved for our review, as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Cruz, 186 A.D.3d 932, 933, 128 N.Y.S.3d 367 [2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 518, 158 N.E.3d 535 [2020] ), or that he made any statements during the plea allocution that cast doubt on his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Haenelt, 161 A.D.3d 1489, 1490, 77 N.Y.S.3d 770 [2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ). Upon review of the record, we decline to take corrective action in the interest of justice (see People v. Howard, 190 A.D.3d 1108, ––––, 138 N.Y.S.3d 751 [2021] ; People v. Cruz, 186 A.D.3d at 933, 128 N.Y.S.3d 367 ; compare People v. Demkovich, 168 A.D.3d 1221, 1221, 91 N.Y.S.3d 801 [2019] ).
Egan Jr., Lynch, Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.