Opinion
576 KA 16-02223
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Darvis MOJENA, Jr., Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, 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 manslaughter in the first degree ( Penal Law § 125.20 [1] ). As defendant correctly contends and the People do not dispute, the record does not establish that defendant validly waived his right to appeal. Supreme Court's oral waiver colloquy and the written waiver signed by defendant together " ‘mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues’ " ( People v. Johnson , 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021] ; see People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ). We thus 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" ( Thoma s, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Even assuming, arguendo, that defendant preserved his contention that the People violated their obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) when they failed to disclose certain grand jury testimony to him (cf. People v. Jones , 90 A.D.3d 1516, 1517, 935 N.Y.S.2d 755 [4th Dept. 2011], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436 [2012] ; People v. Johnson , 88 A.D.3d 1293, 1294, 930 N.Y.S.2d 362 [4th Dept. 2011] ), we conclude that the grand jury testimony lacked exculpatory value and therefore that disclosure was not warranted (see People v. Garguilio , 57 A.D.3d 797, 799, 870 N.Y.S.2d 380 [2d Dept. 2008] ; see also People v. Wright , 43 A.D.3d 1359, 1360, 843 N.Y.S.2d 482 [4th Dept. 2007], lv denied 9 N.Y.3d 1011, 850 N.Y.S.2d 399, 880 N.E.2d 885 [2007] ; People v. Smith , 273 A.D.2d 896, 897, 709 N.Y.S.2d 793 [4th Dept. 2000], lv denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000] ). In any event, we also conclude that "defendant failed to make a prima facie showing of a reasonable possibility that the nondisclosure of the [grand jury testimony] contributed to his conviction" ( People v. Boykins , 160 A.D.3d 1348, 1349, 76 N.Y.S.3d 280 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] [internal quotation marks omitted]; see People v. Switts , 148 A.D.3d 1610, 1611-1612, 52 N.Y.S.3d 178 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017] ).
Finally, we conclude that the sentence is not unduly harsh or severe.