People v. Downs

• Decision Date: 06 May 2021
• Docket Number: 110373
• Citation: 194 A.D.3d 1118,146 N.Y.S.3d 695
• Parties: The PEOPLE of the State of New York, Respondent, v. Arcel DOWNS, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1118
146 N.Y.S.3d 695

The PEOPLE of the State of New York, Respondent,
v.
Arcel DOWNS, Appellant.

110373

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

Calendar Date: March 10, 2021
Decided and Entered: May 6, 2021

146 N.Y.S.3d 696

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Cantania of counsel), for respondent.

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

MEMORANDUM AND ORDER

Colangelo, J.

146 N.Y.S.3d 697

Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered April 3, 2018, convicting defendant upon his plea of guilty of the crimes of criminal possession of stolen property in the fifth degree and unlawful fleeing a police officer in a motor vehicle in the third degree.

Defendant pleaded guilty to criminal possession of stolen property in the fifth degree and unlawful fleeing a police officer in a motor vehicle in the third degree and purportedly waived the right to appeal. County Court thereafter imposed the agreed-upon sentence of one year of incarceration on each conviction to run consecutively to each other but concurrently with a sentence imposed on another conviction. Defendant appeals.

Initially, we find that defendant's appeal waiver was invalid. "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). As is reflected in the transcript of the plea proceedings during which defendant waived his right to appeal, "County Court did not inform defendant that the right to appeal was separate and distinct from the rights [he] was forfeiting by pleading guilty and did not adequately explain the nature of the waiver or ascertain defendant's knowledge of its ramifications" ( People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021] ; see People v. Alexander, 174 A.D.3d 1068, 1068, 104 N.Y.S.3d 765 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019] ). Although defendant and defense counsel signed a written appeal waiver, the waiver contained overbroad language as to the legal ramifications of waiving his right to appeal, and County Court did not ensure that defendant had read the waiver, discussed it with counsel or understood its contents (see People v. Burnell, 183 A.D.3d 931, 932, 123 N.Y.S.3d 728 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020] ; People v. Dolder, 175 A.D.3d 753, 754, 103 N.Y.S.3d 867 [2019] ). As such, defendant did not knowingly, intelligently and voluntarily waive his right to appeal (see People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ; People v. Burnell, 183 A.D.3d at 932, 123 N.Y.S.3d 728 ; People v. Alexander, 174 A.D.3d at 1068, 104 N.Y.S.3d 765 ).

Defendant's challenge to the voluntariness of his plea is unpreserved for our review in the absence of evidence in the record of an appropriate postallocution motion (see People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021] ; People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 [2020] ; People v. Brito, 184 A.D.3d at 901...