People v. Mayo

• Decision Date: 24 June 2021
• Docket Number: 110028B
• Citation: 195 A.D.3d 1313,149 N.Y.S.3d 379
• Parties: The PEOPLE of the State of New York, Respondent, v. Rasheem MAYO, Also Known as Solo and Jr, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1313
149 N.Y.S.3d 379

The PEOPLE of the State of New York, Respondent,
v.
Rasheem MAYO, Also Known as Solo and Jr, Appellant.

110028B

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

Calendar Date: June 2, 2021
Decided and Entered: June 24, 2021

149 N.Y.S.3d 380

Marlene O. Tuczinski, Chatham, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered December 14, 2017 in Schenectady County, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and attempted arson in the second degree.

Defendant was charged in two separate indictments with arson in the second degree and criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts). In full satisfaction thereof, defendant agreed to plead guilty to the reduced charge of attempted arson in the second degree and to one count of criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced to a prison term of 3½ years upon his arson conviction and to a prison term of four years upon his drug conviction – said sentences to run concurrently and to include periods of postrelease supervision. The plea agreement also required defendant to waive his right to appeal and included restitution in the amount of $300 to the local police department for certain "buy money."

Defendant pleaded guilty in conformity with the plea agreement, and Supreme Court thereafter sentenced defendant to a prison term of 3½ years (followed by 3½ years of postrelease supervision) upon his conviction of attempted arson in the second degree and to a prison term of four years (followed by two years of postrelease supervision) upon his conviction of criminal sale of a controlled substance in the third degree. As outlined in the plea agreement, Supreme Court also imposed restitution in the amount of $300. This appeal ensued.

We agree with defendant that his waiver of the right to appeal is invalid. The two written waivers executed by defendant were overbroad, purported to erect an absolute bar to a direct appeal, erroneously advised that the waiver of the right to appeal encompassed defendant's right to seek certain collateral relief in state or federal courts and failed to indicate that certain issues survived such waiver (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d...