People v. Brown

Feb 7, 2020
144 KA 18-00171
Versions:180 A.D.3d 1341
115 N.Y.S.3d 734
2020 NY Slip Op 00944
2020 NY Slip Op 944

PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered June 5, 2017. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We agree with defendant that he did not validly waive his right to appeal because County Court‘s oral colloquy “utterly mischaracterized the nature of the right’ ” to appeal (People v Thomas, — NY3d —, —, 2019 NY Slip Op 08545, *6 [2019]), inasmuch as “the court‘s advisement as to the rights relinquished [by defendant] was incorrect and irredeemable under the circumstances” (id. at —, 2019 NY Slip Op 08545, *5). Specifically, the court erroneously informed defendant that, by waiving the right to appeal, he could obtain no further review of the conviction or sentence by a higher court—crucially omitting any mention of the several rights that survive the waiver of the right to appeal (see id. at —, 2019 NY Slip Op 08545, *6-7). Thus, the colloquy was insufficient to ensure that the waiver was voluntary, knowing, and intelligent (see id. at —, 2019 NY Slip Op 08545, *6-7). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Entered: February 7, 2020

Mark W. Bennett

Clerk of the Court