Opinion
425 KA 19-00815
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Robert WASYL, Defendant-Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA THERESA JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA THERESA JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, 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 guilty plea, of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ). We agree with defendant that his waiver of the right to appeal is invalid. County Court mischaracterized the nature of the right that defendant was being asked to cede by portraying the waiver as an absolute bar to defendant taking an appeal, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues. Furthermore, the record fails to establish that defendant "read and understood the contents of the written waiver that he executed during the proceeding" ( People v. Miller , 161 A.D.3d 1579, 1579, 76 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ; see generally People v. Bradshaw , 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). We therefore conclude that the waiver of appeal was not knowing and voluntary (see People v. Thomas , 34 N.Y.3d 545, 564-565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, ––– S.Ct. ––––, 206 L.Ed.2d 512 [2020] ; see generally People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). We nevertheless conclude that the negotiated sentence, which is the statutory minimum sentence (see § 70.08 [2], [3] [c] ), cannot be characterized as unduly harsh or severe (see People v. Laury , 156 A.D.3d 1473, 1473-1474, 65 N.Y.S.3d 857 [4th Dept. 2017], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; see also People v. Carter , 280 A.D.2d 977, 978, 720 N.Y.S.2d 679 [4th Dept. 2001], lv denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117 [2001] ).