Opinion
535 KA 18-01366
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Jaime M. FONTANEZ-BAEZ, Also Known as Chema; Jota, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO ( KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER ( LISA GRAY OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO ( KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER ( LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, 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 assault in the first degree ( Penal Law § 120.10 [1] ). As defendant contends and the People correctly concede, the record does not establish that defendant validly waived his right to appeal. Here, the rights encompassed by defendant's purported waiver of the right to appeal "were mischaracterized during the oral colloquy and in [the] written form[ ] executed by defendant[ ], which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and ... advised that the waiver encompassed ‘collateral relief on certain nonwaivable issues in both state and federal courts’ " ( People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 566, 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] ; see People v. Montgomery , 191 A.D.3d 1418, 1418-1419, 138 N.Y.S.3d 414 [4th Dept. 2021], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 WL 1921570 [Apr. 28, 2021] ). We conclude that defendant's purported waiver is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" ( Thomas , 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see Montgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ; People v. Stenson , 179 A.D.3d 1449, 1449, 114 N.Y.S.3d 926 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 39, 148 N.E.3d 503 [2020] ). Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence ( see Montgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ), we nevertheless conclude that the sentence is not unduly harsh or severe.