Opinion
570 KA 17-00077
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Darien J. MCMILLIAN, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DANIELLE C. WILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, 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 manslaughter in the first degree ( Penal Law § 125.20 [1] ). We agree with defendant that his waiver of the right to appeal is invalid. The written waiver of the right to appeal signed by defendant and the verbal waiver colloquy conducted by Supreme Court (Moran, J.) together improperly characterized the waiver as "an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief," as well as to "all postconviction relief separate from the direct appeal" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ).
Defendant failed to preserve for our review his contention that his plea was not voluntarily, knowingly, or intelligently entered inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction pursuant to CPL article 440 (see People v. Jimenez , 177 A.D.3d 1326, 1326, 110 N.Y.S.3d 380 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 179, 139 N.E.3d 837 [2019] ; People v. Reddick , 175 A.D.3d 1788, 1789, 109 N.Y.S.3d 781 [4th Dept. 2019], lv denied 34 N.Y.3d 1162, 120 N.Y.S.3d 237, 142 N.E.3d 1139 [2020] ). This case does not fall within the narrow exception to the preservation requirement inasmuch as defendant's contention is premised on a possible justification defense to which defendant alluded in statements he made during the preparation of the presentence report (see People v. Pastor , 28 N.Y.3d 1089, 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; see also People v. Garcia-Cruz , 138 A.D.3d 1414, 1414-1415, 30 N.Y.S.3d 427 [4th Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ). Finally, the sentence is not unduly harsh or severe.