Opinion
111117
05-25-2023
The PEOPLE of the State of New York, Respondent, v. Demetrius TIGGS, Also Known as DJ and Sourpatch, 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., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered November 2, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Defendant was charged by indictment with various crimes, including attempted murder in the second degree, assault in the first degree and criminal use of a firearm. In satisfaction of the indictment, defendant pleaded guilty to assault in the first degree and purportedly waived the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to the agreed-upon prison term of 15 years, to be followed by five years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that his waiver of the right to appeal is invalid. The written waiver executed by defendant "is overbroad and inaccurate, and [Supreme] Court did not overcome the overbroad language of the written waiver by ensuring that defendant understood that some appellate and collateral review survives an appeal waiver" ( People v. Devane, 212 A.D.3d 894, 895, 180 N.Y.S.3d 732 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 840, 208 N.E.3d 68 [2023] ; see People v. McLaughlin, 208 A.D.3d 1556, 1557, 175 N.Y.S.3d 152 [3d Dept. 2022], lv denied 39 N.Y.3d 1074, 183 N.Y.S.3d 789, 204 N.E.3d 425 [2023] ; People v. Nisby, 207 A.D.3d 876, 876, 172 N.Y.S.3d 190 [3d Dept. 2022], lv denied 38 N.Y.3d 1189, 176 N.Y.S.3d 212, 197 N.E.3d 492 [2022] ). In light of the invalid appeal waiver, defendant's challenge to the severity of the sentence is not foreclosed (see People v. Clark, 209 A.D.3d 1063, 1065, 175 N.Y.S.3d 751 [3d Dept. 2022], lv denied 39 N.Y.3d 1140, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Apr. 14, 2023] ). That said, upon review of the record and considering all of the relevant circumstances, we do not find the sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b] ) and we decline defendant's invitation to reduce the sentence in the interest of justice (see CPL 470.15[3][c] ).
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.