PEOPLE v. GIBBS (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered December 4, 2019, convicting defendant upon his plea of guilty of the crimes of attempted robbery in the second degree and attempted escape in the third degree.

In August 2019, defendant was charged by indictment with robbery in the second degree, petit larceny and attempted escape in the third degree.  These charges resulted from an incident wherein defendant, while displaying what appeared to be a firearm, stole three packages of cigarettes from a Stewart's Shop in the City of Glens Falls, Warren County.  Thereafter, while shackled and in the custody of the Glens Falls Police Department, defendant attempted to take a handcuff key off a desk and use it to free himself of his shackles, resulting in the attempted escape charge.  In satisfaction of the indictment, defendant pleaded guilty to attempted robbery in the second degree and attempted escape in the third degree and agreed to waive his right to appeal.  County Court sentenced defendant, as a second felony offender, 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, for the attempted robbery in the second degree conviction and to time served for the attempted escape in the third degree conviction.¹  Defendant appeals.

We agree with defendant that his appeal waiver is invalid.  Defendant executed a written waiver after conferring with counsel, which indicated that he was waiving his right to appeal, among other things, “[a]ny other matters which [he] may have an appeal as of right or otherwise.”  “Such language erroneously suggested that defendant's waiver of his right to appeal was an absolute bar to any appeal” (People v. Knowlton, 207 A.D.3d 1002, 1002, 170 N.Y.S.3d 921 [3d Dept. 2022] [citations omitted];  see People v. Rabine, 227 A.D.3d 1274, 1275, 212 N.Y.S.3d 462 [3d Dept. 2024];  People v. Marsh, 221 A.D.3d 1063, 1064, 199 N.Y.S.3d 734 [3d Dept. 2023]).  County Court failed to “overcome this overbroad language by ensuring that defendant understood that some appellate and collateral review survived the waiver” (People v. Figueroa, 192 A.D.3d 1269, 1270, 144 N.Y.S.3d 240 [3d Dept. 2021];  see 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, 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];  compare People v. Wheeler, 216 A.D.3d 1314, 1314–1315, 190 N.Y.S.3d 169 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 760, 225 N.E.3d 879 [2023]).

Given the invalid appeal waiver, defendant's challenge to the sentence imposed is not precluded (see People v. Miller, 221 A.D.3d 1138, 1139, 199 N.Y.S.3d 758 [3d Dept. 2023];  People v. Moore, 201 A.D.3d 1209, 1210, 159 N.Y.S.3d 766 [3d Dept. 2022]).  Nevertheless, upon our review of the record, which indicates that defendant has a lengthy criminal history and that his actions during the robbery had a significant impact on the store clerk, defendant's sentence – which was consistent with the terms of the plea agreement – was not unduly harsh or severe (see CPL 470.15[6][b]).

Defendant also challenges that his plea was not knowing, voluntary and intelligent;  however, that claim is unpreserved for our review given that he failed to make 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. Rollins, 203 A.D.3d 1386, 1387, 164 N.Y.S.3d 724 [3d Dept. 2022]) and the narrow exception to the preservation requirement is not applicable (see People v. Merritt, 210 A.D.3d 1209, 1209–1210, 178 N.Y.S.3d 254 [3d Dept. 2022];  People v. Parkinson, 199 A.D.3d 1243, 1243–1244, 157 N.Y.S.3d 198 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 708, 181 N.E.3d 1136 [2022]).

ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.

FOOTNOTES

1.   At various points throughout the proceedings, including at the time of sentencing, County Court seemingly misspoke on the record, indicating that defendant pleaded guilty to attempted escape in the second degree.  As a result, the uniform sentence and commitment form reflects that defendant pleaded guilty to and was sentenced for attempted escape in the second degree.  Defendant was charged by indictment with, and thus, necessarily pleaded guilty to, attempted escape in the third degree (see People v. Thiam, 34 N.Y.3d 1040, 1050, 115 N.Y.S.3d 745, 139 N.E.3d 366 [2019] [DiFiore, Ch. J., concurring]).  Accordingly, the uniform sentence and commitment form must be amended to correctly reflect defendant's conviction (see People v. Delosh, 227 A.D.3d 1276, 1277–1278, 212 N.Y.S.3d 464 [3d Dept. 2024]).

McShan, J.

Aarons, J.P., Reynolds Fitzgerald, Fisher and Mackey, JJ., concur.