People v. Winters

• Decision Date: 08 July 2021
• Docket Number: 109879B
• Citation: 151 N.Y.S.3d 263,196 A.D.3d 847
• Parties: The PEOPLE of the State of New York, Respondent, v. Barkim WINTERS, Also Known as Black, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 847
151 N.Y.S.3d 263

The PEOPLE of the State of New York, Respondent,
v.
Barkim WINTERS, Also Known as Black, Appellant.

109879B

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

Calendar Date: June 2, 2021
Decided and Entered: July 8, 2021

151 N.Y.S.3d 264

Clea Weiss, Ithaca, 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.

196 A.D.3d 848

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered September 6, 2017, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In November 2016, detectives with the City of Schenectady Police Department conducted two controlled buys in which a confidential informant (hereinafter the CI) purchased cocaine from defendant, whose nickname is Black. Defendant was charged by indictment with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. Prior to trial, defendant moved to suppress the CI's identification of him from a photo array. After a Wade hearing, conducted before a Judicial Hearing Officer, County Court adopted the Judicial Hearing Officer's recommendation and report and denied defendant's motion to suppress. Defendant thereafter pleaded guilty to one count of criminal sale of a controlled substance in the third degree.

151 N.Y.S.3d 265

As part of his plea agreement, defendant was required to waive his right to appeal. Defendant was thereafter sentenced to a prison term of 3½ years, followed by two years of postrelease supervision. Defendant appeals.

Defendant contends that his appeal waiver was overbroad and, as such, he did not knowingly, intelligently and voluntarily waive his right to appeal. "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]). "[A] trial court must review the waiver and determine whether it meets those requirements by considering all the relevant facts and circumstances surrounding the waiver" ( People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] [internal quotation marks, brackets and citations omitted]). During the plea colloquy, "County Court failed to make clear to defendant that the appeal waiver was not a total bar to defendant taking an appeal, nor did the court adequately ensure that defendant understood the contents or ramifications of the waiver" ( People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021] [citations omitted], lvs denied 37 N.Y.3d 960, 953, 959, 147 N.Y.S.3d 548, 549, 549, 170 N.E.3d 422, 423, 423 [2021]). Further, the record confirms that the written appeal waiver was overbroad in that it advised defendant that he was waiving "all matters relating to the conviction and sentence to the fullest extent that they may lawfully be waived" and that he was also waiving his right to appeal "any [c]ourt opinions, decisions and suppression hearing and other rulings that have

196 A.D.3d 849

been made in connection with [his] case(s)." Additionally, the written waiver informed defendant that he was waiving his right to appeal "from any other matters ... in any [s]tate or [f]ederal [c]ourt, or that [he] may collaterally attack pursuant to [CPL articles] 330 or 440, or through [w]rits of [c]orum [n]obis or [h]abeas [c]orpus, or any other manner, in any [s]tate or [f]ederal court." Therefore, we find that defendant did not knowingly, intelligently and voluntarily waive his right to appeal (see People v. Figueroa, 192 A.D.3d 1269, 1270, 144 N.Y.S.3d 240 [2021] ; People v. Anderson, 184 A.D.3d 1020, 1021, 124 N.Y.S.3d 589 [2020], lvs denied 35 N.Y.3d 1064, 1068, 129 N.Y.S.3d 363, 364, 152 N.E.3d 1165, 1166 [2020]). As such, defendant's challenges to his suppression ruling and sentence are properly before us (see People v. Nichols, 194 A.D.3d 1114, 1116, 146 N.Y.S.3d 699 [2021] ; People v. Justiniano, 134 A.D.3d 1172, 1173–1174, 20 N.Y.S.3d 714 [2015] ).

Turning to the merits, defendant contends that County Court...