Opinion
509 KA 18-01871
07-08-2022
The PEOPLE of the State of New York, Respondent, v. Tysean RUMPH, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, 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, inter alia, manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe.
We agree with defendant that the waiver of the right to appeal is invalid. Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver is inaccurate and misleading insofar as it purports to impose "an absolute bar to the taking of a direct appeal" and purports to deprive defendant of his "attendant rights to counsel and poor person relief, [as well as] 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], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). Although Supreme Court's colloquy regarding the waiver of the right to appeal remedied some of "the mischaracterization[s,] ... [t]he court's verbal statements ... did nothing to counter the other inaccuracies set forth in the written appeal waiver" ( People v. Hughes , 199 A.D.3d 1332, 1333, 157 N.Y.S.3d 203 [4th Dept. 2021] ). A "waiver[ ] cannot be upheld ... on the theory that the offending language can be ignored and that [it is] enforceable based on the court's few correctly spoken terms" ( Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
However, we reject defendant's contention that the bargained-for sentence is unduly harsh and severe.