People v. Tietje

• Decision Date: 18 April 2019
• Docket Number: 109307B
• Citation: 98 N.Y.S.3d 370,171 A.D.3d 1355
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory P. TIETJE, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1355
98 N.Y.S.3d 370

The PEOPLE of the State of New York, Respondent,
v.
Gregory P. TIETJE, Appellant.

109307B

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

Calendar Date: March 15, 2019
Decided and Entered: April 18, 2019

Dennis J. Lamb, Troy, for appellant, and appellant pro se.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

171 A.D.3d 1356

In full satisfaction of a four-count indictment, defendant agreed to plead guilty to one count of driving while intoxicated and executed a waiver of the right to appeal. Thereafter, County Court sentenced defendant, in accordance with the terms of the plea agreement, to a prison term of 2 to 6 years, with the sentence to run consecutively to any previously imposed sentences. Defendant appealed, and this Court rejected his counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on appeal ( 166 A.D.3d 1079, 1079–1080, 85 N.Y.S.3d 287 [2018] ). We now affirm.

Initially, defendant contends that his appeal waiver is invalid and does not preclude his challenge to the severity of the sentence. We agree with defendant that County Court's question regarding whether defendant understood that he was giving up all of his appellate rights when pleading guilty was misleading because it implied "that the right to appeal is automatically extinguished upon entry of a guilty plea" ( People v. Moyett , 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 [2006] ; see People v. Billingslea , 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Odom , 164 A.D.3d 1475, 1475, 83 N.Y.S.3d 624 [2018], lv denied 32 N.Y.3d 1176, 2019 WL 585296 [2019] ). Nevertheless, the court's plea colloquy, together with the detailed written waiver of the right to appeal that explained, among other things, the appellate process and defendant's right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from the trial-related rights automatically forfeited upon a plea of guilty (see People v. Ramos , 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Weinstock , 129 A.D.3d 1663, 1663, 11 N.Y.S.3d 782 [2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ; People v. Williams , 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334 [2008], lv denied 10 N.Y.3d 940, 862...