PEOPLE v. NEDD (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (E. Danielle Jose–Decker, J.), rendered May 14, 2021, convicting defendant upon his plea of guilty of the crime of assault in the second degree (two counts).

In satisfaction of a multicount indictment, defendant pleaded guilty to two counts of assault in the second degree and agreed to waive his right to appeal.  Defendant was sentenced in accordance with the terms of the plea agreement to concurrent prison terms of 41/212 years followed by three years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, the People concede, and our review of the record confirms, that the oral colloquy and written appeal waiver were overly broad in purporting to completely bar appellate and collateral review in state and federal court, as neither conveyed to defendant that some appellate review and other postjudgment relief survive such waiver (see People v. Collins, 226 A.D.3d 1257, 1258, 210 N.Y.S.3d 326 [3d Dept. 2024];  People v. Bermudez, 217 A.D.3d 1261, 1262–1263, 192 N.Y.S.3d 309 [3d Dept. 2023], lv denied 40 N.Y.3d 996, 197 N.Y.S.3d 102, 219 N.E.3d 863 [2023];  People v. Hilliard, 214 A.D.3d 1259, 1260, 184 N.Y.S.3d 638 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 501, 213 N.E.3d 643 [2023]).  As such, defendant's waiver of his right to appeal is invalid and his challenge to the severity of the sentence is, therefore, not foreclosed (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Collins, 226 A.D.3d at 1258, 210 N.Y.S.3d 326).

That said, we are unpersuaded that the sentence imposed is unduly harsh or severe.  The agreed-upon sentence was considerably less than the potential seven-year statutory maximum sentence that could have been imposed on each count and which could have run consecutively (see Penal Law § 70.02[1][c];  [2][b];  [3][c];  People v. Davis, 150 A.D.3d 1329, 1330, 53 N.Y.S.3d 410 [3d Dept. 2017]).  Although defendant was not the initial aggressor in the altercation, the record reflects that defendant, after the victims were no longer a threat, used his shoes as a dangerous weapon to stomp on the victims causing serious physical injuries – including a skull fracture to one victim.  Under these circumstances, we do not find that the sentence is harsh or severe (see CPL 470.15[6][b]), and we decline to modify the sentence in the interest of justice.

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Clark, Aarons, Ceresia and McShan, JJ., concur.