PEOPLE v. SHELDON (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Columbia County (Jonathan D. Nichols, J.), rendered July 11, 2019, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

In 2018, defendant waived indictment and agreed to be prosecuted under a superior court information (hereinafter SCI) charging him with, among other crimes, rape in the first degree.  Defendant subsequently entered into a plea agreement whereby he pleaded guilty to attempted rape in the first degree and purported to waive his right to appeal with a sentencing commitment from County Court that he would be sentenced to no more than an eight-year prison term followed by 10 years of postrelease supervision.  At sentencing, the People identified a potential defect in the SCI and then presented an amended SCI, which defendant agreed to be arraigned upon, to waive indictment and to plead guilty to under the same terms of the plea agreement.  During the ensuing plea allocution, defendant denied that he attempted to engage in sexual intercourse with another person by forcible compulsion on two separate occasions, whereupon the court adjourned the matter for the issuance of a scheduling order.  Upon being remanded without bail, and while exiting the courtroom, defendant uttered something to the victim, who was also present in the courtroom, in violation of an order of protection.  Thereafter, and in full satisfaction of the amended SCI and any uncharged crimes arising out of defendant's alleged violation of the order of protection, defendant pleaded guilty to rape in the first degree, and purportedly waived his right to appeal, with a sentencing commitment from the court that he would receive a prison term between 12 and 15 years followed by 15 years of postrelease supervision.  Consistent with the terms of the plea agreement and sentencing commitment from the court, defendant was sentenced to 15 years in prison to be followed by 15 years of postrelease supervision.  Defendant appeals.

We affirm.  The People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid (see People v. Davis, 204 A.D.3d 1072, 1073, 166 N.Y.S.3d 377 [3d Dept. 2022], lv denied 38 N.Y.3d 1032, 169 N.Y.S.3d 234, 189 N.E.3d 341 [2022];  People v. Gotham, 202 A.D.3d 1157, 1157, 161 N.Y.S.3d 513 [3d Dept. 2022], lv denied 38 N.Y.3d 950, 165 N.Y.S.3d 472, 185 N.E.3d 993 [2022]).  Further, inasmuch as the People and defendant made no joint sentencing recommendation, “defendant retained the right to appeal from his sentence, as the plea document provided that he had that right if his sentence was not jointly recommended” (People v. Katsafaros, 145 A.D.3d 1343, 1343, 47 N.Y.S.3d 473 [3d Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017]).  In view of the foregoing, defendant's challenge to the perceived severity of his sentence is not precluded (see People v. Ford, 210 A.D.3d 1142, 1143, 175 N.Y.S.3d 914 [3d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 784, 204 N.E.3d 420 [2023]).  That said, our review of the record does not reflect that the sentence “was unduly harsh or severe” (CPL 470.15[6][b]).  Despite the serious nature of defendant's conduct, defendant was afforded an advantageous plea agreement and sentence, which was well within the permissible range for a class B violent felony offense (see Penal Law §§ 70.02, 130.35;  see People v. Krzykowski, 293 A.D.2d 877, 880, 742 N.Y.S.2d 138 [3d Dept. 2002], lv denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003]), and County Court imposed a sentence entirely consistent with its sentencing commitment.  Finally, defendant's claim regarding the effectiveness of counsel at sentencing has been considered and found to be without merit.

ORDERED that the judgment is affirmed.

Reynolds Fitzgerald, J.

Garry, P.J., Egan Jr., Pritzker and McShan, JJ., concur.