PEOPLE v. REYNOLDS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Richard J. McNally Jr., J.), rendered July 22, 2021 in Albany County, convicting defendant of the crime of attempted robbery in the second degree.

Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted robbery in the second degree and purportedly waived his right to appeal.  He was thereafter sentenced in accordance with the terms of the plea agreement to a prison term of six years, to be followed by five years of postrelease supervision.  Defendant appeals.

Initially, we agree with defendant that his waiver of the right to appeal is invalid.  This Court has previously deemed the same written appeal waiver to be overly broad (see e.g. People v. Ellis, 229 A.D.3d 1006, 1006, 214 N.Y.S.3d 265 [3d Dept. 2024];  People v. Lomack, 219 A.D.3d 1646, 1687, 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];  People v. Darby, 206 A.D.3d 1165, 1166, 170 N.Y.S.3d 279 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 50, 194 N.E.3d 757 [2022]).  Moreover, our review of the oral colloquy reveals that Supreme Court “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. Ellis, 229 A.D.3d at 1006, 214 N.Y.S.3d 265 [internal quotation marks and citation omitted];  see People v. Mitchell, 228 A.D.3d 997, 998, 212 N.Y.S.3d 744 [3d Dept. 2024];  compare People v. Rabine, 227 A.D.3d 1274, 1275, 212 N.Y.S.3d 462 [3d Dept. 2024]).  Accordingly, defendant's challenge to the severity of his sentence is not precluded (see People v. Ramjiwan, 209 A.D.3d 1176, 1177, 177 N.Y.S.3d 740 [3d Dept. 2022];  People v. Gonzalez, 138 A.D.3d 1353, 1354, 28 N.Y.S.3d 919 [3d Dept. 2016]).  Nevertheless, in view of defendant's criminal history and the severity of the underlying crime, we do not find the agreed-upon sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b];  People v. Gentry, 230 A.D.3d 1428, ––––, 217 N.Y.S.3d 302, 2024 N.Y. Slip Op. 04490, *1 [3d Dept. 2024];  People v. Garrick, 213 A.D.3d 999, 1000, 181 N.Y.S.3d 471 [3d Dept. 2023]).

ORDERED that the judgment is affirmed.

Aarons, J.P., Pritzker, Ceresia, Fisher and Mackey, JJ., concur.