Opinion
No. 901 KA 21-00437
12-22-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. THOMAS AUGELLO, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. TRESMOND OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. TRESMOND OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered February 10, 2021. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of burglary in the third degree (Penal Law § 140.20). We agree with defendant that his waiver of the right to appeal was invalid because Supreme Court's "oral colloquy mischaracterized it as an absolute bar to the taking of an appeal" (People v McCrayer, 199 A.D.3d 1401, 1401 [4th Dept 2021]; see People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied __ US__, 140 S.Ct. 2634 [2020]). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it (see People v Sanford, 138 A.D.3d 1435, 1436 [4th Dept 2016]). We nevertheless reject defendant's contention that the sentence is unduly harsh and severe. Defendant's related contention that he was unconstitutionally imprisoned for his inability to pay restitution is unpreserved for our review (see People v Pena, 28 N.Y.3d 727, 730 [2017]; People v Gilmore, 202 A.D.3d 1453, 1454 [4th Dept 2022], lv denied 38 N.Y.3d 1008 [2022]; People v Vasquez, 74 A.D.3d 462, 463 [1st Dept 2010]) and, in any event, is without merit.