People v. Jones

• Decision Date: 04 November 2021
• Docket Number: 111749
• Citation: 199 A.D.3d 1069,156 N.Y.S.3d 552
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1069
156 N.Y.S.3d 552

The PEOPLE of the State of New York, Respondent,
v.
Paul JONES, Appellant.

111749

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

Calendar Date: September 17, 2021
Decided and Entered: November 4, 2021

156 N.Y.S.3d 553

Karen G. Leslie, Riverhead, for appellant.

Megan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered March 29, 2019, convicting defendant upon his pleas of guilty of the crimes of attempted assault in the first degree and conspiracy in the second degree.

In satisfaction of a 29–count indictment, defendant pleaded guilty to the reduced charge of attempted assault in the first degree and purportedly waived his right to appeal. In satisfaction of a second indictment and an unindicted charge related to an arrest for possession of cocaine, defendant also pleaded guilty to conspiracy in the second degree and agreed to waive his right to appeal. Defendant was sentenced to a prison term of 7½ years followed by five years of postrelease supervision on the attempted assault conviction and a concurrent prison term of 4 to 12 years on the conspiracy conviction. Defendant appeals.¹

Initially, the People concede, and our review of the record confirms, that the

156 N.Y.S.3d 554

waivers of the right to appeal are invalid as the language used at the colloquies and in the written appeal waivers was overbroad and inaccurate with regard to the scope of such waivers (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. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). As such, defendant's challenge to the factual sufficiency of the plea allocution relating to the attempted assault conviction and to the sentence imposed are not foreclosed (compare People v. Gorman, 165 A.D.3d 1349, 1349, 85 N.Y.S.3d 614 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ). Nevertheless, defendant's challenge to the factual sufficiency of the allocution, as well as to the voluntariness of the plea, are unpreserved for our review as the record does not reflect that he made any appropriate postallocution motion (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Avera, 192 A.D.3d 1382, 1382–1383, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d...