People v. Magee

• Decision Date: 28 July 2022
• Docket Number: 111706
• Citation: 207 A.D.3d 1003,170 N.Y.S.3d 920 (Mem)
• Parties: The PEOPLE of the State of New York, Appellant, v. Antonio MAGEE, Respondent.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 1003

170 N.Y.S.3d 920 (Mem)

The PEOPLE of the State of New York, Appellant,

v.Antonio MAGEE, Respondent.

111706

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

Calendar Date: June 17, 2022

Decided and Entered: July 28, 2022

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered April 24, 2019, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a nine-count indictment charging various drug crimes, defendant ultimately agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced as a second felony offender to a prison term of nine years followed by three years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal, and County Court agreed that the promised sentence would run concurrently with the sentence to be imposed on certain pending charges in Washington County (see People v. Magee, 188 A.D.3d 1461, 132 N.Y.S.3d 893 [2020] ). Defendant pleaded guilty in conformity with the plea agreement, County Court imposed the agreed-upon sentence and this appeal ensued.

We affirm. Although defendant – after conferring with counsel – executed a written waiver that specifically encompassed any challenge to the severity of the sentence imposed, County Court neither inquired whether defendant had read the written waiver nor elicited assurances that defendant otherwise understood the contents or ramifications thereof (see People v. David, 200 A.D.3d 1394, 1394, 155 N.Y.S.3d 832 [2021] ; People v. Pagan, 194 A.D.3d 1263, 1264, 144 N.Y.S.3d 410 [2021] ; compare People v. Carter, 200 A.D.3d 1312, 1313, 155 N.Y.S.3d 381 [2021] ; People v. Pizarro, 185 A.D.3d 1092, 1093, 126 N.Y.S.3d 800 [2020] ; People v. King, 184 A.D.3d 909, 910, 123 N.Y.S.3d 556 [2020] ). Similarly, County Court's oral colloquy was insufficient to convey to defendant that certain appellate review survived the waiver (see People v. Linear, 200 A.D.3d 1498, 1499, 159 N.Y.S.3d 233 [2021], lvs denied 38 N.Y.3d 951, 952, 165 N.Y.S.3d 477, 480, 185 N.E.3d 998, 1001 [2022]; People v. Hilts, 200 A.D.3d 1306, 1306, 155 N.Y.S.3d 385 [2021] ; compare People v. Vittengl, 203 A.D.3d 1390, 1391, 163 N.Y.S.3d 715 [2022] ; People v. Mirel, 194 A.D.3d 1198, 1199, 146 N.Y.S.3d 703 [2021] ). Under these circumstances, we agree that defendant's waiver of the right to appeal is invalid and, therefore, his challenge to the sentence imposed is not precluded (see People v. Pompey, 203 A.D.3d 1411, 1412, 164 N.Y.S.3d 718 [2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 376, 188 N.E.3d 568 [2022] ). Upon...