Opinion
1119 KA 19-00894
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Terrence COLE, Defendant-Appellant. (Appeal No. 1)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree ( Penal Law § 160.15 [3] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of criminal possession of a weapon in the second degree (§ 265.03 [3]). The two pleas were entered in a single plea proceeding. As defendant contends and the People correctly concede in each appeal, defendant did not validly waive his right to appeal inasmuch as Supreme 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. Thomas , 34 N.Y.3d 545, 565-566, 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] ; People v. Dragone , 192 A.D.3d 1487, 1487-1488, 140 N.Y.S.3d 840 [4th Dept. 2021] ). Nevertheless, we conclude that the sentence in each appeal is not unduly harsh or severe. Finally, we note that the certificate of conviction in appeal No. 1 does not reflect defendant's status as a second felony offender, and it must be amended accordingly (see People v. Southard , 163 A.D.3d 1461, 1462, 76 N.Y.S.3d 869 [4th Dept. 2018] ).