PEOPLE v. MCCLAIN (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sira, J.), rendered December 14, 2016, convicting defendant upon his plea of guilty of the crime of failure to register or verify as a sex offender.

Defendant, a risk level three sex offender, waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with failure to register or verify as a sex offender as required by Correction Law §§ 168–f (3) and 168–t.  The resulting plea agreement contemplated that defendant would waive his right to appeal and plead guilty to the charged crime with the understanding that he would be incarcerated for nine months in the local jail.  Following defendant's guilty plea, County Court imposed the agreed-upon sentence, which, defendant advises us, he has now served.  This appeal ensued.

Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid.  During its abbreviated colloquy with defendant, “County Court did not explain the separate and distinct nature of the waiver or ascertain that defendant fully understood its consequences” (People v. Dumas, 155 A.D.3d 1256, 1256, 63 N.Y.S.3d 906 [2017] [citations omitted];  see People v. Farrell, 156 A.D.3d 1062, 1062, 65 N.Y.S.3d 465 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ).  Similarly, although defendant executed a detailed written waiver in open court, County Court “made no attempt to ensure that defendant understood the content[s]” or ramifications thereof (People v. Ortiz, 153 A.D.3d 1049, 1049, 61 N.Y.S.3d 178 [2017] [internal quotation marks, ellipsis and citations omitted];  see People v. Aubain, 152 A.D.3d 868, 869, 61 N.Y.S.3d 148 [2017] ).  Under these circumstances, defendant did not knowingly, intelligently and voluntarily waive his right to appeal (see e.g. People v. Herbert, 147 A.D.3d 1208, 1208–1209, 47 N.Y.S.3d 500 [2017] ).

Defendant's challenge to the factual sufficiency of his plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Bailey, 158 A.D.3d 948, 948, 71 N.Y.S.3d 667 [2018];  People v. Depugh, 158 A.D.3d 945, 945, 68 N.Y.S.3d 774 [2018] ).  Contrary to defendant's assertion, he did not “make any statements during the plea colloquy that negated an essential element of the crime or otherwise cast doubt upon his guilt so as to trigger the narrow exception to the preservation rule” (People v. Park, 159 A.D.3d 1132, 1133, 72 N.Y.S.3d 242 [2018];  see People v. Joubert, 155 A.D.3d 1255, 1256, 64 N.Y.S.3d 745 [2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018] ).  Finally, inasmuch as defendant has completed his agreed-upon, nine-month jail sentence, his claim that such sentence was harsh and excessive is moot (see People v. Toft, 156 A.D.3d 1234, 1235, 68 N.Y.S.3d 217 [2017] ).

ORDERED that the judgment is affirmed.

Aarons, J.

McCarthy, J.P., Egan Jr., Rumsey and Pritzker, JJ., concur.