Opinion
230 KA 16-01479
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Eric L. DRAGONE, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, 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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [2] ), defendant contends that he did not validly waive his right to appeal. As the People correctly concede, Supreme Court provided defendant with erroneous information about the scope of the waiver of the right to appeal, including characterizing it as an absolute bar to the taking of an appeal, and we thus conclude that the colloquy was insufficient to ensure that defendant's waiver was voluntary, knowing, and intelligent (see People v. Thomas , 34 N.Y.3d 545, 564-567, 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] ). We note that "[t]he better practice is for the court to use the Model Colloquy, which neatly synthesizes ... the governing principles" ( People v. Somers , 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020], lv denied 36 N.Y.3d 976, 138 N.Y.S.3d 495, 162 N.E.3d 724 [2020] [internal quotation marks omitted]; see Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; NY Model Colloquies, Waiver of Right to Appeal). Nevertheless, we conclude that the sentence is not unduly harsh or severe.