People v. Brown

• Decision Date: 19 July 2018
• Docket Number: 107908
• Parties: The PEOPLE of the State of New York, Respondent, v. Sean BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1269
82 N.Y.S.3d 218

The PEOPLE of the State of New York, Respondent,
v.
Sean BROWN, Appellant.

107908

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

Calendar Date: June 6, 2018
Decided and Entered: July 19, 2018

82 N.Y.S.3d 219

Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered September 11, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

In March 2015, and in full satisfaction of numerous pending charges, defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal possession of a weapon in the second degree with the understanding that he would be sentenced to four years in prison followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. County Court advised defendant, who was out on bail, that it would honor the negotiated sentence provided defendant, among other things, "[did] not violate the law" prior to sentencing and "show[ed] up for sentencing in a timely manner"; should defendant fail to comply, County Court warned, he could receive a sentence of up to seven years in prison followed by five years of postrelease supervision. Defendant thereafter pleaded

82 N.Y.S.3d 220

guilty to the charged crime, and the matter was adjourned for sentencing.

When the parties returned for sentencing in May 2015, defendant requested an adjournment – ostensibly so that he could be present for the birth of his child in mid-August 2015. Despite opposition from the People, County Court granted defendant's request and adjourned sentencing until August 19, 2015, at which time defendant failed to appear and a bench warrant was issued. Defendant subsequently was located and the parties returned to court, whereupon County Court learned that a sealed indictment had been handed up against defendant; County Court reviewed the indictment, revoked defendant's bail and scheduled an Outley hearing. The People ultimately asked that County Court impose an enhanced sentence – citing both the new charge against defendant and defendant's failure to appear for sentencing in August 2015. County Court granted the People's request and sentenced defendant to seven years in prison followed by five years of postrelease supervision. Defendant now appeals.

Initially, we reject defendant's claim that his combined oral and written waiver of the right to appeal was invalid. County Court explained that the plea agreement included a waiver of the right to appeal defendant's conviction and sentence (see People v. Bateman, 151 A.D.3d 1482, 1483, 59 N.Y.S.3d 159 [2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 659, 102 N.E.3d 436 [2018] ) and that such waiver was in addition to the trial-related rights that defendant would be forfeiting by pleading guilty (see People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ). Defendant, after conferring with counsel, signed a written waiver in open court (see People v. Robinson, 155 A.D.3d 1252, 1252, 64 N.Y.S.3d 740 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ) and, in response to...