Opinion
736 KA 18-02274
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Jason CIPOLLA, Defendant-Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree ( Penal Law § 140.20 ), defendant contends that the waiver of the right to appeal is not valid. We agree. We conclude that the colloquy was insufficient to ensure that the waiver was voluntary, knowing, and intelligent, because County Court provided defendant with erroneous information about the scope of the waiver of the right to appeal, including characterizing the waiver as an absolute bar to the taking of an appeal (see People v. Thomas , 34 N.Y.3d 545, 560-564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, ––– S.Ct. ––––, 206 L.Ed.2d 512 [Mar. 30, 2020] ). The better practice is for the court to use the Model Colloquy, "which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). Furthermore, although there was also a written waiver of the right to appeal, "the court failed to confirm that [defendant] understood the contents of the written waiver[ ]" ( Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Cooper , 85 A.D.3d 1594, 1594, 926 N.Y.S.2d 777 [4th Dept. 2011], affd 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Testerman , 149 A.D.3d 1559, 1559, 52 N.Y.S.3d 789 [4th Dept. 2017] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.