PEOPLE v. HARRISON (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered January 14, 2022 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and agreed to waive his right to appeal.  Pursuant to the terms of the plea agreement, defendant was sentenced to a prison term of seven years, to be followed by three years of postrelease supervision.  Defendant appeals.

Initially, as the People concede and our review of the record confirms, defendant's waiver of the right to appeal is invalid.  The record reflects that Supreme Court failed to adequately explain the nature and consequences of the appeal waiver or to elicit defendant's understanding thereof, and the written waiver executed by defendant is not included in the record before us (see People v. Brewster, 194 A.D.3d 1266, 1266–1267, 144 N.Y.S.3d 402 [3d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 690, 172 N.E.3d 802 [2021];  People v. Alexander, 174 A.D.3d 1068, 1068, 104 N.Y.S.3d 765 [3d Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019];  People v. Barnhill, 135 A.D.3d 1247, 1248, 23 N.Y.S.3d 487 [3d Dept. 2016]).  Given defendant's invalid appeal waiver, his challenge to the severity of his sentence is not precluded (see People v. Ripley, 210 A.D.3d 1198, 1200, 177 N.Y.S.3d 802 [3d Dept. 2022], lv denied 39 N.Y.3d 1074, 183 N.Y.S.3d 809, 204 N.E.3d 445 [2023];  People v. Ramjiwan, 209 A.D.3d 1176, 1177, 177 N.Y.S.3d 740 [3d Dept. 2022]).  Nevertheless, in view of defendant's extensive criminal history, and considering that the underlying guilty plea was in satisfaction of five other charges, we do not find the negotiated prison sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b]).  We agree with defendant, however, that the period of postrelease supervision imposed exceeds the statutorily permissible range (see Penal Law §§ 60.04[3];  70.70[2][a];  70.45[2][b];  220.39;  CPL 470.15[4][c]).  Accordingly, we remit the matter for resentencing of the period of postrelease supervision (see People v. Chambers, 185 A.D.3d 1141, 1146–1147, 127 N.Y.S.3d 204 [3d Dept. 2020], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 757, 165 N.E.3d 683 [2021];  People v. Manigault, 150 A.D.3d 1331, 1333–1334, 54 N.Y.S.3d 193 [3d Dept. 2017], lv denied 29 N.Y.3d 1130, 64 N.Y.S.3d 680, 86 N.E.3d 572 [2017]).

ORDERED that the judgment is modified, on the law, by vacating the period of postrelease supervision imposed;  matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

Clark, J.P., Aarons, Ceresia, Fisher and Mackey, JJ., concur.