PEOPLE v. BOWDEN

Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Karon BOWDEN, Appellant.

109827

Decided: November 07, 2019

Before: Garry, P.J., Lynch, Mulvey and Devine, JJ. Catherine A. Barber, Guilderland, for appellant. D. Holley Carnright, 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 May 24, 2017, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

In July 2016, defendant was charged in a two-count indictment with murder in the second degree and criminal possession of a weapon in the second degree. In full satisfaction thereof, defendant pleaded guilty to murder in the second degree and waived his right to appeal, both orally and in writing. In exchange for his guilty plea, the People indicated that their recommended sentence would be that defendant receive a prison term of at least 20 years to life. County Court stated that it would accept the plea agreement and offered no sentencing commitment beyond that it would not impose the maximum sentence allowed by law, to which defendant indicated his understanding prior to pleading guilty. Consistent with the foregoing, County Court thereafter sentenced defendant to a prison term of 24 years to life, and defendant appeals.

We affirm. The record reflects that, during the plea proceeding, defendant was advised that the waiver of the right to appeal was a condition of the plea agreement, and defendant acknowledged his understanding of the plea agreement and its terms (see People v. Snare, 174 A.D.3d 1222, 1222, 102 N.Y.S.3d 902 [2019]; People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018]). County Court then advised defendant that his right to appeal was “completely separate” from the trial-related rights automatically forfeited by his guilty plea, and defendant acknowledged that he understood the nature of the waiver and that he was voluntarily waiving his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019]; People v. Womack, 172 A.D.3d 1819, 1820, 101 N.Y.S.3d 771 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 662, 130 N.E.3d 1272 [2019]). Defendant, after consulting with counsel, also signed a written waiver of appeal in open court — which adequately described the nature and scope of the appellate rights being waived and stated, among other things, that defendant was waiving his right to appeal in consideration of the plea agreement — and County Court confirmed that he had no questions about the written waiver (see People v. Thacker, 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2019]; People v. Greene, 171 A.D.3d 1407, 1408, 99 N.Y.S.3d 120 [2019]; People v. Stebbins, 171 A.D.3d 1395, 1396, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019]). Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019]; People v. Thacker, 173 A.D.3d at 1360–1361, 102 N.Y.S.3d 764). As a result of defendant's valid waiver of appeal, he is precluded from contesting County Court's Molineux rulings (see People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016]; People v. Wolz, 112 A.D.3d 1150, 1152, 976 N.Y.S.2d 723 [2013], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014]). Moreover, “defendant's entry of a valid guilty plea forfeited [his] right to challenge any aspect of County Court's evidentiary Molineux ruling” (People v. Atwood, 9 A.D.3d 512, 513, 779 N.Y.S.2d 646 [2004]; see People v. Pierre, 8 A.D.3d 904, 906, 780 N.Y.S.2d 389 [2004], lv denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004]; People v. Barrier, 7 A.D.3d 885, 886, 776 N.Y.S.2d 374 [2004], lvs denied 3 N.Y.3d 670, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004]).

Next, defendant contends that the appeal waiver does not preclude his challenge to the severity of the sentence because he was not specifically advised at the time of his plea of the maximum sentence that he could potentially receive. Although County Court advised and promised defendant that he would “not receive the maximum [sentence] in return for [his] plea of guilty,” the court failed to advise defendant of that maximum sentence or what sentence defendant could receive. Inasmuch as defendant was “not advised at the time of the plea of the maximum sentence [that] he ․ could face, the appeal waiver does not encompass the right to challenge the sentence as harsh and excessive” (People v. Espino, 279 A.D.2d 798, 800 & n, 718 N.Y.S.2d 729 [2001]; see People v. Long, 117 A.D.3d 1326, 1327, 986 N.Y.S.2d 670 [2014], lv denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014]; People v. Forkey, 72 A.D.3d 1209, 1211, 898 N.Y.S.2d 712 [2010]; People v. Tesar, 65 A.D.3d 716, 717, 883 N.Y.S.2d 803 [2009]; compare People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998]). Turning to the merits, we do not find that the challenged sentence was harsh and excessive. The sentence imposed was, consistent with the plea agreement, less than the possible maximum (see Penal Law § 70.00[2][a]; [3][a][i] ). Further, the sentence is justified by defendant's senseless act of domestic violence causing the death of his former domestic partner. Therefore, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v. Burkett, 101 A.D.3d 1468, 1473, 957 N.Y.S.2d 417 [2012], lv denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013]; People v. Centorani, 294 A.D.2d 613, 614, 740 N.Y.S.2d 887 [2002]; People v. Robinson, 262 A.D.2d 795, 795, 693 N.Y.S.2d 251 [1999], lv denied 93 N.Y.2d 1045, 697 N.Y.S.2d 877, 720 N.E.2d 97 [1999]).

ORDERED that the judgment is affirmed.

Devine, J.

Garry, P.J., Lynch and Mulvey, JJ., concur.

Copied to clipboard