PEOPLE v. ELLIS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Richard J. McNally Jr., J.), rendered August 19, 2021 in Albany County, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with manslaughter in the first degree.  The People afforded defendant the opportunity to plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of 16 years followed by five years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant subsequently pleaded guilty, and Supreme Court sentenced defendant as a second felony offender to the negotiated term of imprisonment.  This appeal ensued.

Preliminarily, we agree that defendant's waiver of the right to appeal is invalid.  “[Supreme] Court's brief remarks failed to explain the separate and distinct nature of the waiver so as to make clear that the right to appeal is not automatically forfeited upon entry of a guilty plea” (People v. Spencer, 219 A.D.3d 981, 982, 194 N.Y.S.3d 818 [3d Dept. 2023], lv denied 40 N.Y.3d 1041, 200 N.Y.S.3d 770, 223 N.E.3d 1246 [2023];  see People v. Atutis, 214 A.D.3d 1264, 1265, 184 N.Y.S.3d 642 [3d Dept. 2023];  People v. Bowman, 194 A.D.3d 1123, 1124, 146 N.Y.S.3d 686 [3d Dept. 2021], lv denied 37 N.Y.3d 963, 148 N.Y.S.3d 743, 171 N.E.3d 219 [2021]).  Although Supreme Court did delineate certain of the appellate rights that survived the waiver, it also informed defendant the appeal waiver meant that “it ends here” and that defendant “[did not] get to appeal to a higher court.”  Further, the confusing nature of the court's oral colloquy was not cured by the written waiver of appeal utilized by the Albany County District Attorney's office – a waiver that we previously have found to be overbroad (see People v. Lomack, 219 A.D.3d 1646, 1647, 198 N.Y.S.3d 236 [3d Dept. 2023], lv denied 40 N.Y.3d 1040, 200 N.Y.S.3d 764, 223 N.E.3d 1240 [2023]).  Given the invalid appeal waiver, defendant's challenge to the severity of the sentence imposed is not precluded (see People v. Knowlton, 207 A.D.3d 1002, 1003, 170 N.Y.S.3d 921 [3d Dept. 2022]).  However, the agreed-upon sentence was significantly less than the statutory maximum (see Penal Law § 70.06[3][b]) and, upon due consideration of all of the relevant factors, we are unable to conclude that such sentence is “unduly harsh or severe” (CPL 470.15[6][b];  see People v. Puleski, 210 A.D.3d 1143, 1144, 175 N.Y.S.3d 917 [3d Dept. 2022]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

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