Opinion
630.1 KA 18-01962
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Deshaun SOMERS, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him upon his plea of guilty of manslaughter in the second degree ( Penal Law § 125.15[1] ). In appeal No. 2, he appeals from a judgment, also entered upon a plea of guilty, convicting him of aggravated harassment of an employee by an inmate (§ 240.32). Defendant contends in both appeals that he did not validly waive his right to appeal, and that the sentences are unduly harsh and severe. We agree with defendant that he did not validly waive his right to appeal. Because County Court provided defendant with erroneous information about the scope of the waiver of the right to appeal, including characterizing that waiver as an absolute bar to the taking of an appeal, we conclude that the colloquy was insufficient to ensure that the waiver was voluntary, knowing, and intelligent (see People v. Thomas , 34 N.Y.3d 545, 560-564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, ––– S.Ct. ––––, 206 L.Ed.2d 512 [2020] ). The better practice is for the court to use the Model Colloquy, "which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). Nevertheless, we conclude that the sentences are not unduly harsh or severe.