PEOPLE v. ARTHUR (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered March 26, 2019, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and endangering the welfare of a child.

Defendant was charged in a seven-count indictment (as amended) with two counts of assault in the first degree, criminal possession of a weapon in the third degree, tampering with physical evidence, forcible touching, sexual abuse in the third degree and endangering the welfare of a child.  In full satisfaction of those charges, defendant was offered the opportunity to plead guilty to one count of the reduced charge of assault in the second degree and endangering the welfare of a child with the understanding that he would be sentenced as a second felony offender upon the assault conviction to a prison term of four years followed by five years of postrelease supervision and to a concurrent one-year period of incarceration upon the remaining conviction.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and County Court imposed the agreed-upon sentence.  This appeal ensued.

To the extent that defendant challenges the voluntariness of his plea, this claim, which survives even a valid appeal waiver, is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Ryals, 224 A.D.3d 938, 938, 204 N.Y.S.3d 331 [3d Dept. 2024];  People v. Merritt, 210 A.D.3d 1209, 1209, 178 N.Y.S.3d 254 [3d Dept. 2022]), and the narrow exception to the preservation requirement is inapplicable (see People v. Rodriguez, 217 A.D.3d 1012, 1014, 190 N.Y.S.3d 510 [3d Dept. 2023];  People v. Merritt, 210 A.D.3d at 1209–1210, 178 N.Y.S.3d 254).  As to the waiver of defendant's right to appeal, the People concede – and our review of the record confirms – that the waiver is invalid, as the written waiver contains inaccurate and overbroad language, and County Court's brief oral colloquy was insufficient to cure the deficiencies therein (see People v. Tucker, 222 A.D.3d 1038, 1039, 200 N.Y.S.3d 798 [3d Dept. 2023];  People v. Booth, 221 A.D.3d 1283, 1284, 200 N.Y.S.3d 501 [3d Dept. 2023]).  Hence, defendant's argument regarding the severity of his sentence is not precluded (see People v. Faulkner, 217 A.D.3d 1143, 1143, 189 N.Y.S.3d 831 [3d Dept. 2023]).  Further, although defendant reached the maximum expiration of his sentence in October 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” (People v. Turner, 217 A.D.3d 1260, 1261, 192 N.Y.S.3d 291 [3d Dept. 2023]).  That said, the five-year period of postrelease supervision imposed was mandatory for a second felony offender convicted of a violent felony (see Penal Law § 70.45[2]), and defendant's assertion that such period constituted cruel and unusual punishment within the meaning of the Eighth Amendment is unpreserved for our review (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017];  People v. Garcia–Reinaldo, 223 A.D.3d 971, 971, 200 N.Y.S.3d 553 [3d Dept. 2024], lv denied 41 N.Y.3d 965, 208 N.Y.S.3d 537, 232 N.E.3d 215 [2024];  People v. Steward, 220 A.D.3d 982, 984, 198 N.Y.S.3d 611 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 774, 225 N.E.3d 893 [2023]).  As we otherwise discern no basis upon which to disturb the sentence imposed, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Clark, J.P., Lynch, Reynolds Fitzgerald, Fisher and Mackey, JJ., concur.