People v. Goodwalt

• Decision Date: 05 May 2022
• Docket Number: 110177, 110178, 112640
• Parties: The PEOPLE of the State of New York, Respondent, v. Ted GOODWALT, Appellant.
• Court: New York Supreme Court — Appellate Division

205 A.D.3d 1070
167 N.Y.S.3d 250

The PEOPLE of the State of New York, Respondent,
v.
Ted GOODWALT, Appellant.

110177, 110178, 112640

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

Calendar Date: March 25, 2022
Decided and Entered: May 5, 2022

167 N.Y.S.3d 251

Angela M. Kelley, Albany, for appellant.

David J. Clegg, District Attorney, Kingston (Jason J. Kovacs of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Colangelo and Ceresia, JJ.

MEMORANDUM AND ORDER

Aarons, J.

205 A.D.3d 1070

Appeals (1) from a judgment of the County Court of Ulster County (Williams, J.), rendered January 18, 2018, convicting defendant upon his plea of guilty of the crime of aggravated family offense, (2)

167 N.Y.S.3d 252

from a judgment of said court, rendered January 18, 2018, which revoked defendant's probation and imposed a sentence of imprisonment, and (3) by permission, from an order of said court, entered March 20, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In January 2017, defendant pleaded guilty to attempted assault in the second degree stemming from his assault on his girlfriend (hereinafter the victim) with whom he lived, in satisfaction of numerous other charges, and was thereafter sentenced to five years of probation. On June 16, 2017, while on probation and in violation of a no-harassment order of protection, defendant returned home after a night of drinking and assaulted and strangled the victim as she slept. Defendant was thereafter charged with violating the conditions of probation

205 A.D.3d 1071

by, among other conduct, violating the order of protection, assaulting the victim and consuming beer. Pursuant to a negotiated plea agreement that required a waiver of appeal, defendant waived indictment and pleaded guilty as charged in a superior court information to the crime of aggravated family offense stemming from the June 16, 2017 incident. That plea satisfied upwards of 50 potential charges for violating the order of protection in place to protect the victim. Defendant also admitted violating the conditions of probation by committing additional crimes on June 16, 2017. Consistent with the agreement, defendant was sentenced, as an acknowledged second felony offender, to a prison term of 2 to 4 years upon his conviction of aggravated family offense. With regard to the probation violation, County Court revoked defendant's probation and imposed a prison term of 1 to 4 years, to be served consecutively to the sentence imposed upon his aggravated family offense conviction.

Defendant thereafter moved, pro se, under CPL 440.10, to vacate the judgment convicting him of aggravated family offense, arguing, among other things, that he had been denied the effective assistance of counsel, which the People opposed. County Court denied the motion, without a hearing. Defendant appeals from both judgments and, with permission, from the order denying his motion to vacate.

Under the circumstances of this case, defendant's waiver of appeal was not made knowingly, intelligently and voluntarily (see People v. Moore, 201 A.D.3d 1209, 1210, 159 N.Y.S.3d 766 [2022] ; People v. Griffen, 200 A.D.3d 1195, 1195–1196, 157 N.Y.S.3d 611 [2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 697, 181 N.E.3d 1125 [2022] ). The record reflects that County Court utilized overbroad language when explaining that, by waiving the right to appeal, such right was "gone forever" and defendant could "never have it back on this case." The written waiver likewise contained some overbroad language, and "the court failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver" ( People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] [internal quotation marks and citations omitted]; see People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 [2021] ). Accordingly, defendant is not precluded from challenging the imposed sentence as harsh and excessive (see People v. Lunan, 196 A.D.3d at 970, 148 N.Y.S.3d 408 ; People v. Deming, 190 A.D.3d 1193, 1194, 136 N.Y.S.3d 918 [2021], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 206, 169 N.E.3d 564 [2021] ). Nevertheless, the record fails to disclose extraordinary circumstances or an abuse of the court's discretion so as to warrant modification of the sentence in the interest of justice (see People v. Latifi, 171 A.D.3d 1351, 1351, 98 N.Y.S.3d 668 [2019] ;

167 N.Y.S.3d 253

People v. Dunster, 146 A.D.3d 1029, 1031, 44 N.Y.S.3d 272 [2017], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ).

205 A.D.3d 1072

Defendant's challenge to his guilty plea as not knowing, voluntary and intelligent survives regardless of the validity of his waiver of appeal (see People v. Smith, 188 A.D.3d 1357, 1357, 133 N.Y.S.3d 689 [2020] ), but was not preserved by an appropriate postallocution motion despite ample opportunity to do so (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ). Moreover, defendant did not make any statements during the plea allocution that would implicate the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Contrary to his...