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People v. Davis

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Dec 23, 2020
2020 N.Y. Slip Op. 7820 (N.Y. App. Div. 2020)

Opinion

1218 KA 16-00760

12-23-2020

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BILLY T. DAVIS, DEFENDANT-APPELLANT.

LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.


PRESENT:

LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered January 14, 2016. The judgment convicted defendant upon his plea of guilty of sexual abuse in the first degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contends that his waiver of the right to appeal was confusing and inaccurate and thus invalid. We agree. We conclude on this record that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" (People v Thomas, 34 NY3d 545, 559 [2019], cert denied — US —, 140 S Ct 2634 [2020]). The better practice is for the court to use the Model Colloquy, which "neatly synthesizes . . . the governing principles" (id. at 567, citing NY Model Colloquies, Waiver of Right to Appeal).

Nevertheless, we reject defendant's contention that the sentence is unduly harsh and severe.

Entered: December 23, 2020

Mark W. Bennett

Clerk of the Court


Summaries of

People v. Davis

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Dec 23, 2020
2020 N.Y. Slip Op. 7820 (N.Y. App. Div. 2020)
Case details for

People v. Davis

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BILLY T. DAVIS…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Date published: Dec 23, 2020

Citations

2020 N.Y. Slip Op. 7820 (N.Y. App. Div. 2020)