Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent, v. Herman FIGUEROA, Appellant.
Decided: March 11, 2021
Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.
G. Scott Walling, Slingerlands, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Hogan, J.), rendered June 7, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted rape in the first degree.
Defendant pleaded guilty to attempted rape in the first degree and purportedly waived the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to five years in prison, to be followed by 20 years of postrelease supervision. Defendant appeals.
Defendant contends that his appeal waiver was invalid. We agree. “An appeal waiver is not ‘knowingly or voluntarily made in the face of erroneous advisements warning of absolute bars to the pursuit of all potential remedies, including those affording collateral relief on certain nonwaivable issues in both state and federal courts’ ” (People v. Anderson, 184 A.D.3d 1020, 1020, 124 N.Y.S.3d 589 , lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 152 N.E.3d 1165 , quoting People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Here, the written waiver signed by defendant indicated that the waiver was an absolute bar to any appeal and stated that defendant was waiving the “right to appeal from any other matters for which I may have an appeal as of right or otherwise in any [s]tate or [f]ederal court, or that I may collaterally attack pursuant to [CPL articles 330 or 440], or through [w]rits of [c]orum [n]obis or [h]abeas [c]orpus, or any other manner, in any [s]tate or [f]ederal court.” Supreme Court did not overcome this overbroad language by ensuring that defendant understood that some appellate and collateral review survived the waiver. Accordingly, we find that defendant did not enter a knowing, intelligent and voluntary appeal waiver (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Anderson, 184 A.D.3d at 1020–1021, 124 N.Y.S.3d 589; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 ). As to defendant's remaining claim that the sentence is harsh and excessive, we discern no abuse of discretion or extraordinary circumstances warranting modification of the sentence in the interest of justice (see People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 ; People v. Rivera, 164 A.D.3d 1573, 1574, 83 N.Y.S.3d 749 , lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 603, 121 N.E.3d 230 ).
ORDERED that the judgment is affirmed.
Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ., concur.
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