People v. Loya

• Decision Date: 21 April 2022
• Docket Number: 112409
• Citation: 204 A.D.3d 1255,166 N.Y.S.3d 752
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert J. LOYA Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1255
166 N.Y.S.3d 752

The PEOPLE of the State of New York, Respondent,
v.
Robert J. LOYA Jr., Appellant.

112409

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

Calendar Date: March 23, 2022
Decided and Entered: April 21, 2022

Erin C. Morigerato, Albany, for appellant.

Merri Turk Lasky, Special Prosecutor, Plainview, for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J.

204 A.D.3d 1255

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered August 12, 2019, convicting

166 N.Y.S.3d 753

defendant upon his plea of guilty of the crime of forgery in the second degree.

In full satisfaction of a 10–count indictment, defendant agreed to plead guilty to one count of forgery in the second degree with the understanding that he would be sentenced to a prison term of either 2½ to 5 years or 3 to 6 years. As defendant was on parole at the time that the underlying offense was committed, the resulting sentence would be served consecutively to defendant's undischarged parole term, and the specific sentence to be imposed depended upon whether defendant made restitution to the victim prior to sentencing. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, made the required restitution payment and thereafter was sentenced as a second felony offender to the contemplated prison term of 2½ to 5 years. This appeal ensued.

204 A.D.3d 1256

We agree with defendant that his waiver of the right to appeal is invalid, as the written waiver executed by defendant contained overbroad language purporting to encompass all potential appellate issues, and County Court's brief oral colloquy with defendant was insufficient to permit a finding that "defendant understood the distinction that some appellate review survived" ( People v. Smith, 193 A.D.3d 1114, 1115, 141 N.Y.S.3d 733 [2021] [internal quotation marks and citation omitted]; see People v. Vivona, 199 A.D.3d 1165, 1166, 156 N.Y.S.3d 602 [2021] ; People v. Mosher, 191 A.D.3d 1170, 1171, 140 N.Y.S.3d 337 [2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021] ; People v. Gervasio, 190 A.D.3d 1190, 1190–1191, 136 N.Y.S.3d 813 [2021] ). Although defendant's challenge to the perceived severity of his sentence is therefore not precluded (see People v. Gervasio, 190 A.D.3d at 1191, 136 N.Y.S.3d 813 ), we discern no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon sentence imposed (see generally People v. Mosher, 191 A.D.3d at 1171, 140 N.Y.S.3d 337 ; 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] ).

As to the balance of defendant's claims, his challenge to the voluntariness of his plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Linear, 200 A.D.3d 1498, 1499, 159 N.Y.S.3d 233 [2021], lvs denied 38 N.Y.3d 951, 165 N.Y.S.3d 477, 185 N.E.3d 998 [Mar. 23, 2022]; People v. Nos, 38 N.Y.3d 952, 165 N.Y.S.3d 480, 185 N.E.3d 1001 [Mar. 23, 2022]; People v. Haynes, 194 A.D.3d 1310, 1310, 144 N.Y.S.3d 648 [2021] ), and the narrow exception to the preservation requirement was not triggered here, "as defendant did not make any statements during the plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea" ( People v. Murray, 197 A.D.3d 1355, 1356, 150 N.Y.S.3d 901 [2021], lv denied 38...