PEOPLE v. BREWSTER (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered July 10, 2014, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree.

After a search of defendant's apartment reportedly uncovered several guns and drugs, including individually packaged bags of heroin and drug paraphernalia, defendant was charged in eight felony complaints and three informations with various crimes.  Pursuant to a negotiated plea agreement that resolved all of the charges and included an appeal waiver, defendant waived indictment and pleaded guilty to criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree, as charged in a superior court information.  The agreement capped defendant's aggregate prison sentence at 10 years with five years of postrelease supervision.  County Court thereafter imposed concurrent prison sentences with a maximum aggregate term of eight years, followed by five years of postrelease supervision.  Defendant now appeals.

Initially, we are persuaded by defendant's argument that he did not knowingly, intelligently and voluntarily waive his right to appeal.  Although defendant executed a detailed, written waiver that included both a waiver of indictment and an appeal waiver, County Court did not explain the nature and consequences of the appeal waiver or advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited upon a guilty plea (see People v. Metayeo, 155 A.D.3d 1239, 1240, 64 N.Y.S.3d 400 [2017];  People v. Musella, 148 A.D.3d 1465, 1466–1467, 50 N.Y.S.3d 612 [2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017];  People v. Ritter, 124 A.D.3d 1133, 1134, 2 N.Y.S.3d 693 [2015] ).  In fact, County Court improperly lumped defendant's waiver of his right to appeal with the trial rights that he was forfeiting by pleading guilty (see People v. Ortiz, 153 A.D.3d 1049, 1049, 61 N.Y.S.3d 178 [2017];  People v. Gonzalez, 138 A.D.3d 1353, 1354, 28 N.Y.S.3d 919 [2016];  People v. Lowe, 133 A.D.3d 1099, 1100, 21 N.Y.S.3d 399 [2015] ).  Moreover, County Court did not verify that defendant had read and understood the written appeal waiver or discussed it with counsel (see People v. Thompson, 157 A.D.3d 1141, 1141, 69 N.Y.S.3d 744 [2018];  People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ).  Accordingly, we find the waiver of appeal to be invalid (see People v. Gonzalez, 138 A.D.3d at 1354, 28 N.Y.S.3d 919;  People v. Ritter, 124 A.D.3d at 1134, 2 N.Y.S.3d 693).

Inasmuch as he did not make an appropriate postallocution motion to withdraw his plea (see CPL 220.60[3] ), defendant failed to preserve his contention that he did not knowingly, voluntarily and intelligently enter into the guilty plea and his further argument that the plea was factually insufficient (see People v. Cook, 150 A.D.3d 1543, 1544, 52 N.Y.S.3d 680 [2017];  People v. O'Neill, 116 A.D.3d 1240, 1241, 983 N.Y.S.2d 738 [2014];  People v. Williams, 102 A.D.3d 1055, 1056, 958 N.Y.S.2d 533 [2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ).  Moreover, the narrow exception to the preservation rule is inapplicable since defendant did not make any statements during the plea allocution that cast doubt upon his guilt or called the voluntariness of his plea into question (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Davis, 136 A.D.3d 1220, 1221, 25 N.Y.S.3d 727 [2016], lv denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016];  People v. Ramos, 135 A.D.3d 1234, 1234–1235, 23 N.Y.S.3d 479 [2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ).  Defendant's constitutional challenge to the sentence is similarly unpreserved (see People v. Sander, 47 A.D.3d 1012, 1013, 850 N.Y.S.2d 238 [2008], lv denied 10 N.Y.3d 844, 859 N.Y.S.2d 403, 889 N.E.2d 90 [2008];  People v. Burt, 142 A.D.2d 794, 794, 531 N.Y.S.2d 131 [1988];  People v. Peale, 122 A.D.2d 353, 354, 504 N.Y.S.2d 321 [1986];  see generally People v. Beaumont, 299 A.D.2d 657, 659, 749 N.Y.S.2d 612 [2002], lv denied 99 N.Y.2d 580, 755 N.Y.S.2d 715, 785 N.E.2d 737 [2003] ).  Therefore, there is no basis to disturb the judgment.

ORDERED that the judgment is affirmed.

Clark, J.

Egan Jr., J.P., Lynch, Devine and Mulvey, JJ., concur.