THE PEOPLE OF THE STATE OF NEW YORK v. KENNY HAMPTON (2026)

MEMORANDUM AND ORDER

Calendar Date:  October 9, 2026

Appeal from a judgment of the County Court of Schenectady County (Mark Caruso, J.), rendered August 22, 2022, convicting defendant upon his plea of guilty of the crime of aggravated driving while intoxicated with a child.

Defendant waived indictment and pleaded guilty to a superior court information charging him with aggravated driving while intoxicated with a child.  The plea agreement included a waiver of the right to appeal and contemplated that defendant would be sentenced to 1 to 4 years in prison, with the sentence to be ordered to run concurrently with the sentence imposed in an unrelated case.  County Court thereafter imposed the agreed-upon sentence.¹  Defendant appeals.

Initially, we agree that defendant's waiver of the right to appeal is invalid.  The written waiver executed by defendant advises that it “will mark the end of [his] case” and precludes him from seeking collateral relief “in any state or federal court.”  Although the written waiver and the plea colloquy do advise that some direct appellate review survives the waiver, neither clarified that defendant's right to pursue collateral relief also survives.  Accordingly, defendant's appeal waiver is not knowing, intelligent and voluntary (see People v. Nesbitt, 248 AD3d 1564, 1565 [3d Dept 2026];  People v. Appiah, 218 AD3d 1060, 1061 [3d Dept 2023], revd on different grounds 41 NY3d 949 [2024] ).

Given the invalidity of defendant's waiver of the right to appeal, his challenge to the severity of his sentence is properly before us.  That said, although we recognize that defendant was sentenced to the maximum permissible term for this conviction (see Vehicle and Traffic Law §§ 1192[2–a][b];  1193[1][c][i];  Penal Law § 70.00[2][e];  [3][b] ), the sentence was ordered, under the terms of the plea agreement, to run concurrently with the lengthier sentence imposed by County Court on the unrelated case.  While we have considered the mitigating circumstances raised by defendant, we are not persuaded that the imposed sentence was unduly harsh or severe and we decline his request to reduce it in the interest of justice (see CPL 470.15[3][c];  People v. Peterson, 245 AD3d 1112, 1113 [3d Dept 2026];  see also People v. Dumas, 227 AD3d 1509, 1509 [4th Dept 2024] ).

Pritzker, J.P., Ceresia, McShan, Mackey and Corcoran, JJ., concur.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In the unrelated case, defendant was sentenced to seven years in prison, to be followed by three years of postrelease supervision, for a conviction of criminal possession of a controlled substance in the third degree, and to a lesser concurrent sentence for a conviction of criminal possession of a weapon in the third degree.