People v Witherspoon (2022 NY Slip Op 06196) People v Witherspoon 2022 NY Slip Op 06196 Decided on November 3, 2022 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:November 3, 2022 112817 [*1]The People of the State of New York, Respondent, vAltereak Witherspoon, Appellant. Calendar Date:September 14, 2022 Before:Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ. Steven A. Feldman, Manhasset, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent. Garry, P.J. Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered December 1, 2020, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant pleaded guilty to the reduced charge of attempted assault in the second degree and purported to waive his right to appeal. Defendant was sentenced, in accordance with the plea agreement, to a prison term of 1⅓ to 4 years and the mandatory fines and surcharges were imposed.[FN1] Defendant appeals. Initially, we agree with defendant that his waiver of the right to appeal is invalid. During the plea colloquy, County Court did not clarify that some appellate rights survive the waiver of appeal and stated "that once we go to sentence and wrap this up that you are not going to try to appeal it." This directive was not ameliorated by the written waiver of appeal, which contained contradictory statements as to the surviving appellate rights. Considering the totality of the circumstances, we cannot conclude that defendant understood the nature of the appellate rights being waived (see People v Streater, 207 AD3d 952, 953-954 [3d Dept 2022]; compare People v Thomas, 34 NY3d 545, 564 [2019]). Next, defendant's contention that his plea was not knowing, voluntary and intelligent because County Court failed to advise him of the deportation consequences of the guilty plea is not preserved for our review absent an appropriate postallocution motion (see People v Badmaxx, 178 AD3d 1205, 1206 [3d Dept 2019]). Even if, as urged by defendant, preservation is not required because defendant had no practical ability to object to the error as he was not informed or aware of the immigration consequences of the plea (see People v Peque, 22 NY3d 168, 182-183 [2013], cert denied 574 US 840 [2014]), we would find defendant's contention unpersuasive. Defendant does not allege that he is subject to immigration or deportation consequences as a result of his guilty plea. Rather, the record reveals that defendant was born in Connecticut and is a United States citizen; these facts are not disputed (compare People v Palmer, 159 AD3d 118, 119-122 [1st Dept 2018]). Defendant's further contention that County Court improperly sentenced him via an electronic appearance without record indication of defendant's consent is similarly unpreserved (cf. People v Diaz, 212 AD2d 412, 412 [1st Dept 1995]). Defendant urges that the …
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