People v. See

• Decision Date: 09 June 2022
• Docket Number: s. 110628,112724
• Citation: 2022 NY Slip Op 03766
• Parties: The People of the State of New York, Respondent, v. David See, Appellant.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03766

The People of the State of New York, Respondent,
v.
David See, Appellant.

Nos. 110628, 112724

Supreme Court of New York, Third Department

June 9, 2022

Calendar Date: April 27, 2022

Craig Meyerson, Peru, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jamie A. Douthat of counsel), for respondent.

Before: Clark, J.P., Pritzker, Colangelo, Ceresia and McShan, JJ.

Ceresia, J.

Appeals (1) from a judgment of the County Court of Clinton County (Favreau, J.), rendered January 4, 2018, convicting defendant upon his plea of guilty of the crime of rape in the first degree, and (2) by permission, from an order of said court, entered December 21, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Following a period of time in which this matter was pending in local criminal court, defendant was charged in a 16-count indictment with sexual abuse in the first degree, two counts of criminal sexual act in the first degree, two counts of criminal sexual act in the third degree, five counts of rape in the first degree, five counts of rape in the third degree and endangering the welfare of a child. These charges stemmed from allegations that defendant, who was born in 1975, had engaged in sexual intercourse and other sexual conduct with the victim, who was less than 17 years old at the time.

Defendant eventually pleaded guilty to a single count of rape in the first degree in satisfaction of the charges set forth in the indictment and purported to waive his right to appeal. County Court sentenced defendant, as agreed upon, to a prison term of 10 years to be followed by 10 years of postrelease supervision. Defendant thereafter moved to vacate his conviction pursuant to CPL 440.10, primarily alleging that he was denied the effective assistance of counsel. County Court denied defendant's motion without a hearing. Defendant appeals from the judgment and, by permission, from the order denying his CPL 440.10 motion. ^[1] We affirm.

Initially, the People concede, and we agree, that the waiver of the right to appeal is invalid. The written waiver was overbroad as it purported to present a bar to "all post-conviction remedies" and, moreover, County Court did not ensure that "defendant had read the waiver, understood it or had ample time to discuss it with counsel" (People v Williams, 202 A.D.3d 1162, 1163 [2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 954 [2022]; see People v Burnell, 183 A.D.3d 931, 932 [2020], lv denied 35 N.Y.3d 1043 [2020]). Despite the court's indication during the oral colloquy that some constitutional claims survived, the court failed to specify which rights and, rather, stated that the waiver of the right to appeal presented a "practical" end to defendant's case. This was insufficient to remedy the defects, such that it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Thomas, 34 N.Y.3d 545, 560, 563 [2019]; People v Linear, 200 A.D.3d 1498, 1499 [2021], lvs denied 38 N.Y.3d 951, 952 [2022]; People v Brito, 184 A.D.3d 900, 901 [2020]).

Defendant argues that County Court erred in denying his request to have new counsel...