Opinion
999 KA 22-00093
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Deon ANDERSON, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, 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 rape in the first degree ( Penal Law § 130.35 [3] ). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as "County Court 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 there was no clarification that appellate review remained available for certain issues" ( People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; see People v. Somers , 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020], lv denied 36 N.Y.3d 976, 138 N.Y.S.3d 462, 495, 162 N.E.3d 691, 724 [2020]; see also People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ). Nevertheless, contrary to defendant's further contention, we conclude that his sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction contains clerical errors (see generally People v. Thurston , 208 A.D.3d 1629, 1630, 174 N.Y.S.3d 663 [4th Dept. 2022] ). The certificate of conviction erroneously states that defendant was sentenced on July 15, 2019 when, in fact, no sentence was imposed on that date. It further erroneously states that defendant was resentenced on November 12, 2021 when, in fact, November 12 was the first date on which the sentence was pronounced. The certificate of conviction must therefore be amended to correct those clerical errors.