PEOPLE v. RABINE (2024)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Warren County (Robert A. Smith, J.), rendered February 10, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree, and (2) from a judgment of said court, rendered February 10, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant waived indictment and agreed to be prosecuted pursuant to two superior court informations charging him, respectively, with attempted criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the fourth degree.  Pursuant to a negotiated plea agreement, which encompassed the superior court informations and other pending and/or uncharged offenses, defendant agreed to plead guilty to the charged crimes with the understanding that he would be released under supervision subject to various terms and conditions.  If successful, defendant would receive concurrent split sentences of six months in jail followed by five years of probation;  if unsuccessful, defendant could receive consecutive prison terms totaling 121/212 years followed by periods of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the agreement and was released.  After defendant violated certain conditions of his release, County Court – consistent with its discussions with counsel – sentenced defendant to a prison term of 41/212 years followed by three years of postrelease supervision with respect to the weapon conviction and to a concurrent prison term of 41/212 years followed by two years of postrelease supervision with respect to the drug conviction.  These appeals ensued.

We agree with defendant that the written waivers of appeal are invalid – in part because they contain overbroad language suggesting a complete bar to an appeal (see e.g. People v. Knowlton, 207 A.D.3d 1002, 1002, 170 N.Y.S.3d 921 [3d Dept. 2022];  People v. Ellithorpe, 207 A.D.3d 1001, 1001, 170 N.Y.S.3d 918 [3d Dept. 2022]) and in part because County Court failed to ascertain whether defendant had read the waivers, discussed them with counsel or understood their contents (see e.g. People v. Devins, 206 A.D.3d 1365, 1366, 168 N.Y.S.3d 898 [3d Dept. 2022];  People v. Burke, 199 A.D.3d 1170, 1171, 154 N.Y.S.3d 505 [3d Dept. 2021]).  That said, “the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal” (People v. Burke, 199 A.D.3d at 1171, 154 N.Y.S.3d 505 [internal quotation marks and citation omitted];  accord People v. Devins, 206 A.D.3d at 1366, 168 N.Y.S.3d 898;  see People v. Washington, 206 A.D.3d 1278, 1280, 170 N.Y.S.3d 329 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 538, 198 N.E.3d 781 [2022]).  In this regard, County Court explained the separate and distinct nature of the right to appeal, as well as the appellate process, and expressly delineated certain of the issues that would survive the waiver.  In return, defendant indicated that he had discussed the waiver with counsel and expressed his willingness to waive his right to appeal.  Under these circumstances, we are satisfied that the court's oral colloquy was sufficient to convey that some appellate review survived (see People v. Wheeler, 216 A.D.3d 1314, 1314–1315, 190 N.Y.S.3d 169 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 760, 225 N.E.3d 879 [2023];  People v. Devins, 206 A.D.3d at 1366, 168 N.Y.S.3d 898;  People v. Brunson, 185 A.D.3d 1300, 1300 & n, 128 N.Y.S.3d 338 [3d Dept. 2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020];  compare People v. Gamble, 190 A.D.3d 1022, 1024, 138 N.Y.S.3d 729 [3d Dept. 2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 134, 167 N.E.3d 1269 [2021]) and that defendant, in turn, knowingly, intelligently and voluntarily waived his right to appeal.  In light of the valid appeal waiver, defendant's challenge to the severity of his sentence is precluded (see People v. Robinson, 213 A.D.3d 1002, 1003, 181 N.Y.S.3d 470 [3d Dept. 2023]).

ORDERED that the judgments are affirmed.

Garry, P.J., Egan Jr., Pritzker, Powers and Mackey, JJ., concur.