People v. Anderson

• Decision Date: 25 June 2015
• Citation: 129 A.D.3d 1385,2015 N.Y. Slip Op. 05519,10 N.Y.S.3d 903 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Melvin D. ANDERSON, Also Known as AK, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1385

10 N.Y.S.3d 903 (Mem)

2015 N.Y. Slip Op. 05519

The PEOPLE of the State of New York, Respondent

v.Melvin D. ANDERSON, Also Known as AK, Appellant.

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

June 25, 2015.

Rebecca L. Fox, Plattsburgh, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.

Opinion

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered August 27, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree (two counts).

When defendant's appeal was previously before this Court, we rejected an Anders brief, withheld decision and assigned new counsel to address at least one issue of arguable merit pertaining to the validity of defendant's appeal waiver that may, in turn, implicate other potential appellate issues (120 A.D.3d 1490, 992 N.Y.S.2d 447 [2014] ). Defendant now asserts that his waiver of the right to appeal was invalid and seeks to challenge the sentence imposed as harsh and excessive. A review of the record establishes that defendant's waiver of the right to appeal was not knowing, voluntary and intelligent (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Patterson, 119 A.D.3d 1157, 1158, 990 N.Y.S.2d 319 [2014], lvs. denied 24 N.Y.3d 1042, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014], 24 N.Y.3d 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ). County Court's perfunctory inquiry was insufficient “to ensure that defendant grasped the minimal information pertaining to the appeal waiver” (People v. Bradshaw, 18 N.Y.3d at 260, 938 N.Y.S.2d 254, 961 N.E.2d 645 ) and, although the record contains an executed written appeal waiver, County Court made no inquiry concerning it during the plea colloquy (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015] ). Defendant's challenge to the severity of the sentence is, therefore, not precluded (see People v. Ashlaw, 126 A.D.3d 1236, 1237, 5 N.Y.S.3d 614 [2015] ). We, nevertheless, find that the agreed-upon sentence was not harsh or excessive as the record reveals no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v....