People v. Suddard

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: McCarthy, J.P.
• Citation: People v. Suddard, 77 N.Y.S.3d 910(Mem) (N.Y. App. Div. 2018)
• Decision Date: 02 August 2018
• Docket Number: 108119
• Parties: The PEOPLE of the State of New York, Respondent, v. John SUDDARD, Appellant.

164 A.D.3d 950

77 N.Y.S.3d 910 (Mem)

The PEOPLE of the State of New York, Respondent,

v.John SUDDARD, Appellant.

108119

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

Calendar Date: June 4, 2018

Decided and Entered: August 2, 2018

Kelly L. Egan, Rensselaer, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered December 13, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a 14–count indictment, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. County Court sentenced defendant, as a second violent felony offender, to a negotiated prison term of 15 years followed by five years of postrelease supervision. Defendant appeals.

To the extent that defendant asserts that inadmissible hearsay and erroneous instructions before the grand jury impaired the legal sufficiency of the evidence supporting the indictment, such claim is not jurisdictional in nature and, therefore, was forfeited by his guilty plea (see People v. Guerrero, 28 N.Y.3d 110, 115–116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Cole, 118 A.D.3d 1098, 1099–1100, 987 N.Y.S.2d 247 [2014] ). Next, the People concede, and our review of the record confirms, that the waiver of the right to appeal was invalid "inasmuch as the record does not establish that defendant understood that the right to appeal was separate and distinct from the rights forfeited by a guilty plea" ( People v. Maxwell, 142 A.D.3d 739, 740, 36 N.Y.S.3d 832 [2016] ; see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). As such, defendant's challenge to the severity of the sentence is not precluded. Nonetheless, upon review, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the agreed-upon sentence in the interest of justice, particularly in light of the favorable plea agreement and defendant's criminal history (see People v. Brodus, 151 A.D.3d 1469, 1470, 54 N.Y.S.3d 600 [2017] ; People v. Garcia, 131 A.D.3d 732, 735, 14 N.Y.S.3d 809 [2015], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ). Defendant's...