PEOPLE v. BROWN (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered January 5, 2022, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

In September 2015, defendant was indicted and charged with burglary in the first degree as a sexually motivated felony and rape in the first degree, stemming from an incident wherein defendant unlawfully entered the victim's home and raped her.  In 2016, following a mental competency hearing conducted pursuant to CPL 730.30, County Court determined that defendant was an incapacitated person (see CPL 730.10[1]) and an order of commitment was entered.  Defendant was found to be incapacitated following hearings in 2017, 2018 and 2019 as well, and orders of subsequent retention were entered.  In 2021, after the maximum time period of the 2019 retention order had expired, defendant did not request subsequent retention, informing County Court that his expert had found him to no longer be incapacitated and that he was not seeking any further hearings as to his competency.  Defendant thereafter pleaded guilty to rape in the first degree – in full satisfaction of the underlying indictment – with the understanding that he would be sentenced to a prison term of 15 years followed by 20 years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  County Court imposed the agreed-upon term of imprisonment, and this appeal ensued.

We affirm.  We reject defendant's challenge to the validity of his appeal waiver.  Initially, nothing in the plea colloquy suggests that defendant's mental issues impaired his ability to understand the nature and ramifications of the waiver.  Further, the record reflects that defendant was advised that a waiver of the right to appeal was a term and condition of the plea agreement, and County Court explained the separate and distinct nature of the waiver, which defendant affirmed he understood (see People v. Robinson, 213 A.D.3d 1002, 1002–1003, 181 N.Y.S.3d 470 [3d Dept. 2023];  People v. Stockwell, 203 A.D.3d 1407, 1408, 161 N.Y.S.3d 859 [3d Dept. 2022], lv denied 38 N.Y.3d 1036, 189 N.E.3d 349 [2022]).  Defendant also executed a detailed written waiver, assuring the court that he had read the waiver, discussed it with counsel and understood its contents.  Although the written waiver included some overbroad language, it also advised defendant of the appellate rights that were not encompassed by the waiver, and we are satisfied that defendant understood the distinction that some appellate review survived (see People v. Gincerowski, 205 A.D.3d 1152, 1153, 165 N.Y.S.3d 918 [3d Dept. 2022];  People v. Hernandez, 188 A.D.3d 1357, 1358, 135 N.Y.S.3d 516 [3d Dept. 2020], lv denied 36 N.Y.3d 1057, 141 N.Y.S.3d 768, 165 N.E.3d 694 [2021]).  Accordingly, we find that defendant's appeal waiver was knowing, intelligent and voluntary (see People v. Wint, 222 A.D.3d 1050, 1051, 201 N.Y.S.3d 544 [3d Dept. 2023], lv denied 41 N.Y.3d 945, 206 N.Y.S.3d 248, 229 N.E.3d 1141 [2024];  People v. Marshall, 206 A.D.3d 1377, 1378, 168 N.Y.S.3d 708 [3d Dept. 2022], lv denied 39 N.Y.3d 941, 177 N.Y.S.3d 537, 198 N.E.3d 780 [2022]).  In light of defendant's valid appeal waiver, his challenge to the severity of his sentence is precluded (see People v. Cook, 219 A.D.3d 1022, 1023, 192 N.Y.S.3d 804 [3d Dept. 2023], lv denied 40 N.Y.3d 1080, 202 N.Y.S.3d 771, 225 N.E.3d 890 [2023];  People v. Hurd, 217 A.D.3d 1268, 1268–1269, 192 N.Y.S.3d 330 [3d Dept. 2023]).

ORDERED that the judgment is affirmed.

Aarons, J.P., Lynch, Ceresia, McShan and Powers, JJ., concur.