PEOPLE v. TURNER (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered September 26, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal possession of a weapon in the second degree.  The plea agreement, which required defendant to waive his right to appeal, contemplated that defendant would plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of 41/212 years followed by five years of postrelease supervision.  Defendant pleaded guilty in conformity with the plea agreement, and County Court imposed the agreed-upon sentence.  This appeal ensued.

The People concede – and our review of the record confirms – that defendant's waiver of the right to appeal is invalid, as County Court “neither adequately explained the nature of the waiver nor ascertained defendant's understanding of the ramifications thereof” (People v. Alexander, 194 A.D.3d 1261, 1262, 147 N.Y.S.3d 261 [3d Dept. 2021], lv denied 37 N.Y.3d 1094, 156 N.Y.S.3d 771, 178 N.E.3d 418 [2021];  accord People v. Smith, 208 A.D.3d 1538, 1539, 174 N.Y.S.3d 614 [3d Dept. 2022];  see People v. Dye, 210 A.D.3d 1192, 1193, 178 N.Y.S.3d 239 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 789, 204 N.E.3d 425 [2023]).  Accordingly, defendant's challenge to the severity of his sentence is not precluded (see People v. Ellithorpe, 207 A.D.3d 1001, 1002, 170 N.Y.S.3d 918 [3d Dept. 2022]).  Similarly, although defendant reached the maximum expiration date of his prison sentence in January 2023, he has not reached the maximum expiration date of his postrelease supervision period, and, as such, his challenge to the severity of his sentence is not moot (see People v. Ramjiwan, 209 A.D.3d 1176, 1177, 177 N.Y.S.3d 740 [3d Dept. 2022]).  That said, upon reviewing the record and considering all of the relevant factors, we do not find the period of postrelease supervision imposed to be unduly harsh or severe (see CPL 470.15[6][b];  People v. Ramjiwan, 209 A.D.3d at 1177, 177 N.Y.S.3d 740), and we decline defendant's invitation to reduce it in the interest of justice.

ORDERED that the judgment is affirmed.

Garry, P.J., Egan Jr., Clark, Fisher and McShan, JJ., concur.