Opinion
822 KA 19-00250
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Sheahonnie DAVIS, Defendant-Appellant.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, 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 her upon her plea of guilty of attempted robbery in the first degree ( Penal Law §§ 110.00, 160.15 [2] ). We affirm.
We agree with defendant that she did not validly waive her right to appeal. Although no "particular litany" is required for a waiver of the right to appeal to be valid ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Johnson [Appeal No. 1], 169 A.D.3d 1366, 1366, 92 N.Y.S.3d 770 [4th Dept. 2019], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ), defendant's waiver of the right to appeal was invalid because County Court's oral colloquy mischaracterized it as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; cf. People v. Cromie , 187 A.D.3d 1659, 133 N.Y.S.3d 167 [4th Dept. 2020] ). We note that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing NY Model Colloquies, Waiver of Right to Appeal). Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy's mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the "right to have an attorney appointed" if she could not afford one and the "right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction" (see id. at 554, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Where, as here, the "trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ [this] ‘[C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ " ( id. at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Because the purported waiver of the right to appeal is unenforceable, it does not preclude our review of defendant's challenge to the court's refusal to grant her youthful offender status (see People v. Johnson , 182 A.D.3d 1036, 1036, 120 N.Y.S.3d 902 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 849, 151 N.E.3d 530 [2020] ). Nevertheless, we conclude that the court did not abuse its discretion in declining to adjudicate defendant a youthful offender (see People v. Simpson , 182 A.D.3d 1046, 1046, 120 N.Y.S.3d 910 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 823, 151 N.E.3d 504 [2020] ; People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see generally People v. Minemier , 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ). In addition, having reviewed the applicable factors pertinent to a youthful offender determination (see People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we decline to exercise our interest of justice jurisdiction to grant her such status (see Simpson , 182 A.D.3d at 1046, 120 N.Y.S.3d 910 ; Lewis , 128 A.D.3d at 1400-1401, 7 N.Y.S.3d 800 ; cf. Keith B.J. , 158 A.D.3d at 1161, 70 N.Y.S.3d 291 ).
Finally, we note that we have not considered belated arguments not raised in defendant's appellate brief, i.e., her contention that the sentence is unduly harsh and severe (see People v. Weaver , 222 A.D.2d 1046, 1046, 635 N.Y.S.2d 861 [4th Dept. 1995], appeal denied 87 N.Y.2d 1026, 644 N.Y.S.2d 160, 666 N.E.2d 1074 [1996], cert denied 519 U.S. 855, 117 S.Ct. 153, 136 L.Ed.2d 98 [1996] ).