Opinion
1098 KA 18–00250
11-15-2019
The PEOPLE of the State of New York, Respondent, v. David SCHMIDINGER, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT. DAVID SCHMIDINGER, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
DAVID SCHMIDINGER, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of murder in the second degree ( Penal Law § 125.25 [1 ] ). Defendant correctly argues in his main brief that his waiver of the right to appeal is invalid because he pleaded guilty to the sole count of the indictment " ‘without receiving a sentencing commitment or any other consideration’ " ( People v. Mitchell , 147 A.D.3d 1361, 1362, 46 N.Y.S.3d 749 [4th Dept. 2017] ; see People v. Gramza , 140 A.D.3d 1643, 1643–1644, 33 N.Y.S.3d 620 [4th Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Collins , 129 A.D.3d 1676, 1676, 12 N.Y.S.3d 477 [4th Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ). County Court's promise to consider imposing a sentence below the statutory maximum merely restated its preexisting statutory and common-law obligation to impose an appropriate legal sentence (see generally People v. Farrar , 52 N.Y.2d 302, 305–306, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ), and we agree with defendant that such a promise is the equivalent of no promise at all and cannot supply the consideration necessary to enforce a waiver of the right to appeal (see generally Ogdensburgh & Lake Champlain R.R. Co. v. Vermont & Can. R.R. Co. , 63 N.Y. 176, 180 [1875] ). As the Second Circuit explained in invalidating a waiver of the right to appeal under similar circumstances, such an illusory promise is not consideration for a waiver because it affords the defendant "no benefit ... beyond what he would have gotten by pleading guilty without an agreement" ( United States v. Lutchman , 910 F.3d 33, 37 [2d Cir.2018] ). We nevertheless conclude that, contrary to defendant's contentions in his main and pro se supplemental briefs, the sentence is not unduly harsh or severe.