People v. Gervasio

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Gervasio, 190 A.D.3d 1190, 136 N.Y.S.3d 813(Mem) (N.Y. App. Div. 2021)
• Decision Date: 28 January 2021
• Docket Number: 110574
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin P. GERVASIO, Appellant.

190 A.D.3d 1190

136 N.Y.S.3d 813 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Kevin P. GERVASIO, Appellant.

110574

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: Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

In full satisfaction of a two-count indictment and other pending charges, defendant agreed to plead guilty to one count of grand larceny in the fourth degree with the understanding that he would be sentenced to a prison term of 1½ to 3 years. The plea agreement also required defendant to waive his right to appeal. Following defendant's guilty plea, the matter was adjourned for sentencing. Although defendant was arrested on other charges while on bail awaiting sentencing, County Court nonetheless imposed the agreed-upon term of imprisonment. This appeal ensued.

We agree with defendant that his waiver of the right to appeal was invalid. The written waiver at issue here was "intended to be as broad as the law allows" and purported to "encompass[ ] all issues arising from this criminal proceeding." Although we have excused overly-broad written waivers where the court's oral colloquy with the defendant "still permit[ted] the conclusion that the counseled defendant understood the distinction that some appellate review survived" ( People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; 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 322, 159 N.E.3d 1089 [2020] ; People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ), County Court's terse discussion of defendant's appellate rights fell short of drawing that distinction. Accordingly, defendant's challenge to the severity of the sentence imposed is not precluded. However, as defendant received the minimum sentence that could be imposed given his status as a second felony offender (see Penal Law § 70.06[3][e] ; [4][b] ), his claim that such sentence is harsh and excessive must fail (see People v. Heverly, 165 A.D.3d 1320, 1321, 82 N.Y.S.3d 750 [2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ).

Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.

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