People v. Washburn
| Decision Date | 11 March 2021 |
| Docket Number | 110625 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kenneth K. WASHBURN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
192 A.D.3d 1267
142 N.Y.S.3d 676
The PEOPLE of the State of New York, Respondent,
v.
Kenneth K. WASHBURN, Appellant.
110625
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: February 10, 2021
Decided and Entered: March 11, 2021
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered July 5, 2018, convicting defendant upon his plea of guilty of the crimes of attempted criminal sexual act in the second degree and possessing a sexual performance by a child.
In full satisfaction of a six-count indictment, defendant agreed to plead guilty to one count of attempted criminal sexual act in the second degree and one count of possessing a sexual performance by a child with the understanding that he would be sentenced to a prison term of two years upon his conviction of attempted criminal sexual act in the second degree (followed by a period of postrelease supervision ranging from 5 to 15 years) and to a prison term of 1½ to 3 years upon his conviction of possessing a sexual performance by a child – said sentences to run consecutively. The term of postrelease supervision to be imposed was left to County Court's discretion, and the plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the agreement, and the matter was adjourned for sentencing. Defendant then moved to withdraw his plea, arguing that he had not been afforded sufficient time to review certain Rosario materials – allegedly provided for the first time immediately before his plea – and, therefore, his plea was involuntary. County Court denied the motion and thereafter sentenced defendant as a second felony offender to the contemplated terms of imprisonment and imposed a 15–year period of postrelease supervision. This appeal ensued.
The People concede that defendant's waiver of the right to appeal is invalid and that he is not precluded from arguing that the sentence imposed was harsh and...
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