Opinion
112386
04-20-2023
The PEOPLE of the State of New York, Respondent, v. Giovanni NADAL–SANCHEZ, Appellant.
Justin C. Brusgul, Altamont, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Justin C. Brusgul, Altamont, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered December 4, 2019, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the second degree. Defendant and his codefendant were charged in a 25–count indictment with, among other crimes, various drug- and weapon-related offenses. In full satisfaction of the 15 counts applicable to him, defendant agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree and one count of criminal possession of a weapon in the second degree, with the understanding that he would be sentenced to a prison term of eight years upon his conviction of the drug charge and to a prison term of five years upon his conviction of the weapon charge – to be served concurrently and to be followed by a period of postrelease supervision to be determined by County Court. The plea agreement also required defendant to waive his right to appeal. In accordance with such plea agreement, defendant pleaded guilty in conformity and County Court sentenced defendant to the contemplated terms of imprisonment followed by a period of postrelease supervision. This appeal ensued.
We affirm. The People concede, and our review of the record confirms, that defendant did not validly waive his right to appeal. The written appeal waiver contained both overbroad language and inaccurate information, and County Court's brief oral colloquy did not overcome those deficiencies "by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v. Williams, 203 A.D.3d 1398, 1398–1399, 164 N.Y.S.3d 342 [3d Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022] [internal quotation marks and citation omitted]; see People v. McLean, 207 A.D.3d 961, 961, 170 N.Y.S.3d 519 [3d Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 36, 194 N.E.3d 743 [2022] ; People v. Howard, 190 A.D.3d 1108, 1108, 138 N.Y.S.3d 751 [3d Dept. 2021] ). As a result, defendant's challenge to the severity of his sentence is not precluded (see People v. Blauvelt, 211 A.D.3d 1175, 1175, 180 N.Y.S.3d 328 [3d Dept. 2022] ). Nonetheless, the record fails to disclose that the sentence imposed was unduly harsh or severe (see CPL 470.15[6][b] ), and we decline defendant's invitation to modify his sentence in the interest of justice – despite the fact that the instant crimes represent defendant's first felony convictions.
Garry, P.J., Egan Jr., Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.