People v. Harris

• Decision Date: 10 August 2016
• Citation: 2016 N.Y. Slip Op. 05760,36 N.Y.S.3d 211,142 A.D.3d 557
• Parties: The PEOPLE, etc., respondent, v. Akeem Bethea HARRIS, also known as Tony Bethea, appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 557

36 N.Y.S.3d 211

2016 N.Y. Slip Op. 05760

The PEOPLE, etc., respondent,

v.Akeem Bethea HARRIS, also known as Tony Bethea, appellant.

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

Aug. 10, 2016.

Nicole D. Gadbois, Poughkeepsie, NY, for appellant.

David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered October 4, 2013, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145

). The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was forgoing” (People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see

People v. Springer, 109 A.D.3d 557, 970 N.Y.S.2d 462 ; People v. Johnson, 109 A.D.3d 489, 970 N.Y.S.2d 91 ; People v. Collins, 104 A.D.3d 785, 960 N.Y.S.2d 328 ). Notwithstanding the defendant's execution of the written waiver form, it cannot be said that he knowingly, intelligently, and voluntarily waived his right to appeal (see

People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Singleton, 129 A.D.3d 748, 8 N.Y.S.3d 915 ; People v. Johnson, 113 A.D.3d 635, 977 N.Y.S.2d 896 ; People v. Springer, 109 A.D.3d at 557–558, 970 N.Y.S.2d 462 ; People v. Vasquez, 101 A.D.3d 1054, 1055, 956 N.Y.S.2d 171 ).

Although the defendant's claim that the County Court erred in imposing a sentence greater than what had been promised in the original plea agreement would survive even a valid waiver of the right to appeal (see People v. Bracy, 131 A.D.3d 538, 539, 15 N.Y.S.3d 397

; People v. Youmans, 106 A.D.3d 1036, 965 N.Y.S.2d 381 ; People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877 ), the defendant is, in any event, not entitled to relief on this claim. The defendant violated the conditions of his plea agreement that he not be rearrested between the time of the plea and sentencing, and that he timely appear for his interview with the probation department. Under these circumstances, the court was not bound by its original promise, and its imposition of an enhanced sentence was proper (see People v. Hicks, 98 N.Y.2d 185, 746 N.Y.S.2d 441, 774 N.E.2d 205

; People v. Figgins, 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156 ; People v. Mazyck, 117 A.D.3d 1084, 1085, 986 N.Y.S.2d 556 ; People v. Patterson, 106 A.D.3d 757, 964 N.Y.S.2d 233 ; People v. Bacchus, 103 A.D.3d 744, 745, 959 N.Y.S.2d 710 ; People v. White, 215 A.D.2d 791, 627 N.Y.S.2d 957 ).

The defendant's remaining...