People v. Lafond

• Decision Date: 17 December 2020
• Docket Number: 110757
• Citation: 189 A.D.3d 1824,137 N.Y.S.3d 222
• Parties: The PEOPLE of the State of New York, Respondent, v. Lordson LAFOND, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1824
137 N.Y.S.3d 222

The PEOPLE of the State of New York, Respondent,
v.
Lordson LAFOND, Appellant.

110757

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

Calendar Date: November 24, 2020
Decided and Entered: December 17, 2020

137 N.Y.S.3d 223

Linda B. Johnson, Albany, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Lynch, J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Rensselaer County (Sober, J.), rendered September 25, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

Defendant was charged in an indictment with attempted criminal possession of a controlled substance in the first degree. Following arraignment, he filed an omnibus motion seeking, among other things, to dismiss the charge due to insufficient evidence before the grand jury. County Court reviewed the grand jury minutes and concluded that the evidence was legally sufficient to support the indictment. Defendant thereafter pleaded guilty to attempted criminal possession of a controlled substance in the third degree and purportedly waived the right to appeal. County Court sentenced defendant, as a second felony offender, to 3½ years in prison, to be followed by three years of postrelease supervision. Defendant appeals.

We affirm. Initially, we agree with defendant that he did not knowingly, intelligently

137 N.Y.S.3d 224

and voluntarily waive the right to appeal. The written appeal waiver that defendant signed contained language that indicated that the waiver was an absolute bar to any appeal. A review of the plea colloquy reveals that County Court did not overcome this defect by ensuring that defendant "understood the distinction that some appellate review survived" the appeal waiver ( People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; see People v. Allevato, 170 A.D.3d 1264, 1265, 93 N.Y.S.3d 753 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ). As such, we find that defendant did not enter a knowing, intelligent and voluntary appeal waiver (see People v. Anderson, 184 A.D.3d 1020, 1020–1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 364, 152 N.E.3d 1165, 1166 [2020]; People v. Barrales, 179 A.D.3d 1313, 1314, 118 N.Y.S.3d 263 [2020] ; compare People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ).

Defendant's challenge to the voluntariness of his plea is unpreserved for our review as the record does not...