PEOPLE v. DEJESUS OCASIO (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 31, 2017 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant waived indictment and was charged in a superior court information with criminal sale of a controlled substance in the third degree.  He pleaded guilty to this crime and purportedly waived his right to appeal.  In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 41/212 years in prison, followed by three years of postrelease supervision.  Defendant appeals.

Initially, defendant contends that his waiver of the right to appeal was not knowing, voluntary and intelligent.  Based upon our review of the record, we agree.  “ ‘[I]n determining whether the record demonstrates that a defendant understood an appeal waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgements of understanding, a written waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system’ ” (People v. Tomko, 185 A.D.3d 1356, 1357, 128 N.Y.S.3d 98 [2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 521, 158 N.E.3d 538 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]).  Here, although Supreme Court advised defendant of the separate and distinct nature of the right to appeal, it did not ascertain that defendant discussed it with counsel and that he understood its ramifications (see People v. Tomko, 185 A.D.3d at 1357, 128 N.Y.S.3d 98;  People v. Rodriguez, 185 A.D.3d 1296, 1297, 125 N.Y.S.3d 898 [2020]).  In addition, the court did not confirm that defendant had read the written waiver, reviewed it with counsel and was aware of its provisions (see People v. Rodriguez, 185 A.D.3d at 1297, 125 N.Y.S.3d 898;  People v. McKoy, 175 A.D.3d 1616, 1617, 108 N.Y.S.3d 520 [2020], lvs denied 34 N.Y.3d 1016, 1018, 114 N.Y.S.3d 767, 138 N.E.3d 496 [2019]).  We note that the written waiver was overly broad as it encompassed certain nonwaivable rights, including the right to pursue CPL article 440 motions and/or writs of error coram nobis (see People v. Rodriguez, 185 A.D.3d at 1297, 125 N.Y.S.3d 898;  People v. Martz, 181 A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 819, 151 N.E.3d 500 [2020];  see also People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020]).  In view of the foregoing, the appeal waiver was invalid and does not preclude defendant from challenging the severity of the sentence (see People v. Tomko, 185 A.D.3d at 1357, 128 N.Y.S.3d 98;  People v. Miller, 166 A.D.3d 1385, 1386, 88 N.Y.S.3d 696 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 194, 122 N.E.3d 1107 [2019]).

Nevertheless, we find that the sentence was neither harsh nor excessive.  The sentence imposed was agreed to by defendant as part of the plea agreement, and defendant, a second felony offender charged with a class drug B felony, was subject to a significantly longer prison term if convicted after trial (see Penal Law § 70.70[3][b][i]).  Consequently, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Latifi, 171 A.D.3d 1351, 1352, 98 N.Y.S.3d 668 [2019];  People v. Treceno, 160 A.D.3d 1216, 1216, 71 N.Y.S.3d 915 [2018];  People v. Bates, 146 A.D.3d 1075, 1076, 45 N.Y.S.3d 269 [2017]).

ORDERED that the judgment is affirmed.

Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.