Opinion
No. 565 KA 20-00927
07-28-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT HUMPHREY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered March 10, 2020. The judgment convicted defendant upon his plea of guilty of attempted robbery in the first degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of two counts of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). We agree with defendant that the waiver of the right to appeal is not valid 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 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]; see People v Williams, 186 A.D.3d 1112, 1113 [4th Dept 2020]). Further, although defendant also signed a written waiver of the right to appeal at that time, we may not consider whether that document corrected any defects in the court's oral colloquy because "[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it" (People v Bradshaw, 18 N.Y.3d 257, 262 [2011]; see People v Mobayed, 158 A.D.3d 1221, 1222 [4th Dept 2018], lv denied 31 N.Y.3d 1015 [2018]). We nevertheless conclude that the sentence is not unduly harsh or severe.