Opinion
144 KA 18-00171
02-07-2020
The PEOPLE of the State of New York, Respondent, v. Gerald BROWN, Defendant–Appellant.
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.
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.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
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, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, 2019 WL 6312521, *6 (2019), inasmuch as "the court's advisement as to the rights relinquished [by defendant] was incorrect and irredeemable under the circumstances" ( id. at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– 2019 N.Y. Slip Op. 08545, 2019 WL 6312521, *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 ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, 2019 WL 6312521, *6–7 ). Thus, the colloquy was insufficient to ensure that the waiver was voluntary, knowing, and intelligent (see id. at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, 2019 WL 6312521, *6–7 ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.