TERRY, WILLIAM, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
362
KA 13-01846
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
WILLIAM TERRY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered April 18, 2013. The judgment
convicted defendant, upon his plea of guilty, of attempted sexual
abuse in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the finding that defendant
is a second violent felony offender and replacing it with a finding
that he is a predicate felony sex offender and as modified the
judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted sexual abuse in the first degree
(Penal Law §§ 110.00, 130.65 [3]). We agree with defendant that he
did not validly waive his right to appeal because, “[a]lthough the
record establishes that defendant executed a written waiver of the
right to appeal, there was no colloquy between [Supreme] Court and
defendant regarding the waiver of the right to appeal to ensure that
it was knowingly, voluntarily and intelligently entered” (People v
Carno, 101 AD3d 1663, 1664, lv denied 20 NY3d 1060). Contrary to the
People’s contention, the fact that the written waiver stated that
defendant “waive[d] . . . [his] right to have the court explain on the
record . . . [his] right to appeal and the significance of [his]
waiver of appeal” does not compel a different result. “ ‘[A] written
waiver does not, standing alone, provide sufficient assurance that the
defendant is knowingly, intelligently and voluntarily giving up his
right to appeal’ ” (People v Banks, 125 AD3d 1276, 1277, lv denied 25
NY3d 1159; see People v Bradshaw, 18 NY3d 257, 264-265; People v
Callahan, 80 NY2d 273, 283).
Defendant contends that the court erred in imposing a
supplemental sex offender victim fee because he was not convicted of
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KA 13-01846
an offense contained in article 130 of the Penal Law, but instead was
convicted of an attempt to commit such an offense (see § 60.35 [1]
[b]). Defendant failed to preserve that issue for our review (see
generally People v Arnold, 107 AD3d 1526, 1528, lv denied 22 NY3d 953;
People v Cooper, 77 AD3d 1417, 1419, lv denied 16 NY3d 742), and we
decline to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]). We reject
defendant’s alternative contention that the fee should be vacated on
the ground that defense counsel’s failure to object to the fee
constituted ineffective assistance of counsel. Defendant’s contention
“does not survive his guilty plea because [t]here is no showing that
the plea bargaining process was infected by any allegedly ineffective
assistance or that defendant entered the plea because of his
attorney[’s] allegedly poor performance” (People v Abdulla, 98 AD3d
1253, 1254 [internal quotation marks omitted], lv denied 20 NY3d 985).
The court sentenced defendant as a second violent felony offender
to a determinate term of incarceration of 4 years with 5 years of
postrelease supervision. Inasmuch as attempted sexual abuse in the
first degree is not a violent felony (see Penal Law § 70.02 [1] [d]),
we modify the judgment by adjudicating defendant a predicate felony
sex offender (see § 70.80 [1] [c]; People v Flores, 135 AD3d 415, 415;
People v Garcia, 29 AD3d 255, 264, lv denied 7 NY3d 789). Although
that issue was not raised by the parties, we cannot allow an illegal
sentence to stand (see People v Hughes, 112 AD3d 1380, 1381, lv denied
23 NY3d 1038; People v Perrin, 94 AD3d 1551, 1551). The maximum term
of incarceration is four years for both a second violent felony
offender (§ 70.04 [2], [3] [d]) and a predicate felony sex offender
with a violent predicate felony offense (§ 70.80 [1] [c]; [5] [c]),
and we therefore see no reason to remit for resentencing (see Hughes,
112 AD3d at 1381; Perrin, 94 AD3d at 1551; People v Terry, 90 AD3d
1571, 1571-1572; cf. People v Donhauser [appeal No. 2], 37 AD3d 1053,
1054). The sentence is not unduly harsh or severe. Although
defendant received the maximum period of incarceration, he was
sentenced to the minimum period of postrelease supervision, which
could have been as much as 15 years (§ 70.45 [2-a] [g]). In light of
defendant’s significant history of convictions of sex offenses, we see
no reason to reduce the sentence.
Entered: April 29, 2016 Frances E. Cafarell
Clerk of the Court