Opinion
340 KA 19-01302
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Joshua WRIGHT, Defendant-appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EDWARD P. DUNN 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 (EDWARD P. DUNN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, 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 murder in the first degree ( Penal Law § 125.27 [1] [a] [vii] ; [b]). As the People correctly concede, defendant's purported waiver of the right to appeal is invalid. During the plea colloquy, County Court " ‘conflated the right to appeal with those rights automatically forfeited by the guilty plea’ " ( People v. Chambers , 176 A.D.3d 1600, 1600, 111 N.Y.S.3d 149 [4th Dept. 2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 180, 139 N.E.3d 838 [2019] ; see People v. Mothersell , 167 A.D.3d 1580, 1581, 90 N.Y.S.3d 466 [4th Dept. 2018] ) and, therefore, the record does not establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Moreover, the court's explanation that the waiver would foreclose any review by a higher court "utterly ‘mischaracterized the nature of the right [to appeal that] ... defendant was being asked to cede’ " ( 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] ; see People v. Youngs , 183 A.D.3d 1228, 1229, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] ).
Although the waiver of the right to appeal is invalid and does not preclude consideration of defendant's challenge to the severity of the sentence, we nonetheless conclude that it is not unduly harsh or severe.