PEOPLE v. GILMORE (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (Frank J. LaBuda, J.), rendered December 18, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In full satisfaction of a four-count indictment, defendant agreed to plead guilty to one count of criminal possession of a weapon in the second degree with the understanding that the court could impose a prison term of between 7 and 11 years, in its discretion, followed by five years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the plea agreement, and County Court thereafter sentenced defendant as a second felony offender to 11 years of imprisonment, with five years of postrelease supervision.  This appeal ensued.

The People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid inasmuch as the Court's “explanation of the appeal waiver was overly broad and tended to impermissibly signify a complete bar to any appellate rights” (People v. Monk, 189 A.D.3d 1970, 1971, 138 N.Y.S.3d 700 [3d Dept. 2020], lv denied 37 N.Y.3d 958, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021]).  Therefore, defendant's challenge to the severity of his sentence is not foreclosed (see People v. Morris–Caldwell, 221 A.D.3d 1137, 1137, 197 N.Y.S.3d 760 [3d Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 804, 228 N.E.3d 617 [2024];  People v. Murray, 209 A.D.3d 1058, 1059, 175 N.Y.S.3d 377 [3d Dept. 2022]).  That said, upon reviewing the record before us and taking into consideration all of the relevant factors, including the nature of the underlying crime and defendant's criminal history, we do not find the term of imprisonment imposed to be unduly harsh or severe (see CPL 470.15[6][b]).  Accordingly, the judgment of conviction is affirmed.

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Lynch, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.