People v. Kehn
| Decision Date | 27 June 2019 |
| Docket Number | 109569 |
| Citation | 173 A.D.3d 1564,101 N.Y.S.3d 666 (Mem) |
| Parties | The PEOPLE of the State of New York, Respondent, v. John W. KEHN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
173 A.D.3d 1564
101 N.Y.S.3d 666 (Mem)
The PEOPLE of the State of New York, Respondent,
v.
John W. KEHN, Appellant.
109569
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: May 24, 2019
Decided and Entered: June 27, 2019
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Before: Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted assault in the second degree. The charge stems from defendant's actions in causing injuries to a police officer who was attempting to take him into custody on a bench warrant. Pursuant to a negotiated plea agreement that included a waiver of appeal and satisfied numerous other pending charges, defendant pleaded guilty to attempted assault in the second degree with the understanding that sentencing would be adjourned and he would be allowed to participate in a drug court treatment program. Upon successful completion of the program, defendant would receive five years of probation. If he failed to successfully complete or were terminated from the program, he could be sentenced to a prison term of up to 1 to 4 years. After three years of mixed success in the program, defendant voluntarily withdrew from the program. County Court then imposed a prison sentence of 1 to 3 years and ordered him to pay restitution as agreed. Defendant appeals.
We affirm. Initially, as the People concede, defendant's waiver of appeal was invalid. County Court (Meldrim, J.) failed to advise him that the right to appeal is separate and distinct from the rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Alolafi, 170 A.D.3d 1379, 1380, 96 N.Y.S.3d 720 [2019] ). The signed written waiver of appeal was similarly deficient, and the court also failed to ascertain that...
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People v. Taylor
...as defendant has already served his sentence and was recently released upon reaching his maximum expiration date (see People v. Kehn, 173 A.D.3d 1564, 1564, 101 N.Y.S.3d 666 [2019] ; People v. Evans, 159 A.D.3d 1226, 1227, 72 N.Y.S.3d 650 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 102, 1......
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People v. LaPierre
...was similarly deficient (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Kehn, 173 A.D.3d 1564, 1564, 101 N.Y.S.3d 666 [2019] ; People v. Morrow, 163 A.D.3d 1265, 1265, 80 N.Y.S.3d 559 [2018] ). Nonetheless, we find that the issues raised by defe......
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People v. Lenahan
...as to whether he had read it or understood it (see People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021] ; People v. Kehn, 173 A.D.3d 1564, 1564, 101 N.Y.S.3d 666 [2019] ). As defendant's 158 N.Y.S.3d 641 understanding of the appeal waiver is not reflected on the face of the re......
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People v. Lenahan
... ... [2019]; People v Latifi, 171 A.D.3d 1351, 1351 ... [2019]). Although defendant executed a written appeal waiver, ... the court made no inquiry as to whether he had read it or ... understood it (see People v Williams, 190 A.D.3d ... 1192, 1193 [2021]; People v Kehn, 173 A.D.3d 1564, ... 1564 [2019]). As defendant's understanding of the appeal ... waiver is not reflected on the face of the record, it is ... invalid and, thus, he is not precluded from challenging the ... severity of his sentence (see People v Pagan, 194 ... A.D.3d ... ...