Opinion
05-10-2024
The PEOPLE of the State of New York, Respondent, v. Devonte BOUIE, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered May 19, 2021. The judgment convicted defendant, upon a guilty plea, of manslaughter in the first degree.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, GREENWOOD, AND NOWAK, 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 a plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1]). We agree with defendant that his waiver of the right to appeal is invalid. The written waiver used overbroad language that "‘mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal’ " (People v. Johnson, 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021]; see 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]; People v. St. Denis, 207 A.D.3d 1084, 1084, 169 N.Y.S.3d 573 [4th Dept. 2022]), and the oral colloquy did not cure that defect (see Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Fernandez, 218 A.D.3d 1257, 1258, 194 N.Y.S.3d 632 [4th Dept. 2023], lv denied 40 N.Y.3d 1012, 199 N.Y.S.3d 12, 222 N.E.3d 528 [2023]; People v. Rumph, 207 A.D.3d 1209, 1210, 170 N.Y.S.3d 806 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 777, 204 N.E.3d 413 [2023]). Nevertheless, we reject defendant’s contention that his sentence is unduly harsh and severe.