Opinion
185 KA 16–01426
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Bryant BYRD, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, upon his guilty plea, of burglary in the second degree ( Penal Law § 140.25[2] ), and he now appeals from a resentence with respect to that conviction. We agree with defendant that his waiver of the right to appeal is invalid. County Court mischaracterized the nature of the right that defendant was being asked to waive inasmuch as the court stated that the waiver was an absolute bar to taking an appeal, as well as a bar to all postconviction relief (see People v. Thomas, 34 N.Y.3d 545, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, 2019 WL 6312521, *6 [2019] ). Additionally, there is "no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues" ( People v. Stenson, 179 A.D.3d 1449, 1449, 114 N.Y.S.3d 926 [4th Dept. 2020] ). Thus, although defendant may challenge the severity of his sentence, we nevertheless conclude that the sentence is not unduly harsh or severe.