People v. Deming

• Decision Date: 28 January 2021
• Docket Number: 110997
• Citation: 136 N.Y.S.3d 918 (Mem),190 A.D.3d 1193
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel D. DEMING, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1193

136 N.Y.S.3d 918 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Daniel D. DEMING, Appellant.

110997

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

Calendar Date: January 4, 2021

Decided and Entered: January 28, 2021

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered September 6, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the third degree (two counts).

Defendant waived indictment and agreed to be prosecuted pursuant to two superior court informations – each charging him with one count of robbery in the third degree. The People extended a plea offer whereby defendant would plead guilty to the charged crimes with the understanding that he would be sentenced – as a second felony offender – to a prison term of 2½ to 5 years upon each conviction, said sentences to be served consecutively. The plea agreement also required defendant to waive his right to appeal, and County Court agreed to recommend defendant for participation in a shock incarceration program. Defendant pleaded guilty in conformity with the agreement, and the matter was adjourned for sentencing. Following an additional adjournment to afford defendant the opportunity to file a motion to withdraw his plea, which he ultimately elected not to do, defendant again pleaded guilty (at the People's request) to the charged crimes, and County Court imposed the contemplated terms of imprisonment. This appeal ensued.

The People concede that defendant's waiver of the right to appeal is invalid, as the written waiver runs afoul of People v. Thomas , 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 (2019), and County Court's brief oral colloquy with defendant was – in our view – insufficient to "permit[ ] the conclusion that the counseled defendant understood the distinction that some appellate review survived" ( id. at 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Brunson, 185 A.D.3d 1300, 1300 n., 128 N.Y.S.3d 338 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 345, 159 N.E.3d 1112 [2020] ; People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ). Accordingly, defendant's challenge to the perceived severity of his sentence is not...