People v. Ghee

• Decision Date: 17 June 2021
• Docket Number: 111093
• Citation: 195 A.D.3d 1244,145 N.Y.S.3d 872 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey GHEE, Also Known as G, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1244

145 N.Y.S.3d 872 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jeffrey GHEE, Also Known as G, Appellant.

111093

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

Calendar Date: May 7, 2021

Decided and Entered: June 17, 2021

G. Scott Walling, Slingerlands, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered January 15, 2019 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a consolidated indictment, defendant agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced as a second felony offender to a prison term of 6½ years followed by a period of postrelease supervision ranging from 1½ to 3 years. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and Supreme Court thereafter sentenced defendant to a prison term of 6½ years followed by three years of postrelease supervision. This appeal ensued.

We agree with defendant that his waiver of the right to appeal was invalid. The written waiver of appeal executed by defendant was overbroad in that, among other defects, it purported to erect an absolute bar to a direct appeal and erroneously indicated that defendant's waiver of the right to appeal included his right to pursue certain collateral relief in state or federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Figueroa, 192 A.D.3d 1269, 1270, 144 N.Y.S.3d 240 [2021] ; People v. Anderson, 184 A.D.3d 1020, 1020–1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 NY3d 1064, 1068, 129 N.Y.S.3d 363, 364, 152 N.E.3d 1165, 1166 [2020]; see also People v. DeJesus–Ocasio, 192 A.D.3d 1264, 1264, 143 N.Y.S.3d 160 [2021] ). Supreme Court's brief oral colloquy with defendant fell short of curing such defects, as the court failed to ensure "that defendant understood the distinction that some appellate review survived the appeal waiver" ( People v. Lafond, 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [2020] [internal quotation marks and citation omitted], lv denied 36 N.Y.3d 1121, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 WL 1921459 [Apr. 5, 2021] ; see People v. Avera, 192 A.D.3d 1382, 1382, 145 N.Y.S.3d 199 [2021] ; People v. Figueroa, 192 A.D.3d at 1270, 144 N.Y.S.3d 240 ).

In light of the invalid appeal waiver, defendant's challenge to the perceived severity of the sentence imposed is not precluded. That said, the record reflects that defendant received only six months more than the minimum sentence that could be imposed upon his conviction of criminal sale of a controlled substance in the third degree (see Penal Law § 70.70[4][b][i] ). Although defendant did receive the maximum period of postrelease supervision that could be imposed in...