Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent, v. Kirk CARNEY, Appellant.
Decided: July 28, 2022
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ.
Cliff Gordon, Monticello, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 11, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.
In 2018, defendant pleaded guilty to the crime of criminal possession of a weapon in the third degree, in satisfaction of a 12–count indictment stemming from defendant's unlawful possession of various firearms. Pursuant to the plea agreement, defendant purported to waive his right to appeal both orally and in writing. County Court thereafter sentenced defendant, as an admitted second felony offender, to the agreed-upon prison term of seven years, followed by five years of postrelease supervision. Defendant appeals.
Initially, we agree with defendant that his appeal waiver is invalid. During the plea colloquy, County Court discussed the nature and scope of the appeal waiver by using overbroad language, explaining that, once defendant waived his right to appeal, it was “gone forever” (see People v. Goodwalt, 205 A.D.3d 1070, 1071, 167 N.Y.S.3d 250 , lv denied 38 N.Y.3d 1071, 171 N.Y.S.3d 452, 191 N.E.3d 404 [June 28, 2022]; see People v. Winters, 196 A.D.3d 847, 848, 151 N.Y.S.3d 263 , lvs denied 37 N.Y.3d 1025, 1030, 153 N.Y.S.3d 413, 175 N.E.3d 438, 439 ). The written waiver likewise contained language mischaracterizing the rights to be waived and “the court failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver” (People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379  [internal quotation marks and citations omitted]; see People v. Williams, 203 A.D.3d 1398, 1398–1399, 164 N.Y.S.3d 342 , lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 ; People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 ).
Given the invalid appeal waiver, defendant is not precluded from challenging the severity of his sentence (see People v. Lunan, 196 A.D.3d at 970, 148 N.Y.S.3d 408; People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 , lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 206, 169 N.E.3d 564 ). Nevertheless, we are unpersuaded by defendant's claim that a reduction of his sentence is warranted. Despite defendant's age and chronic medical conditions, we note that his sentence, although the maximum permissible (see Penal Law §§ 70.06[d]; 265.02), was negotiated as part of a plea agreement that resolved 11 other charges in the indictment, including two felonies. Accordingly, and in consideration of defendant's significant criminal history, as well as the circumstances of the underlying offense, we do not find that defendant's sentence “was unduly harsh or severe” (CPL 470.15[b]; see People v. Robinson, 72 A.D.3d 1277, 1278, 898 N.Y.S.2d 365 , lv denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 ; People v. Jackson, 302 A.D.2d 748, 750, 757 N.Y.S.2d 114 , lv denied 100 N.Y.2d 539, 763 N.Y.S.2d 5, 793 N.E.2d 419 ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.
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