Opinion
2021-04889
08-26-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY HICKS, DEFENDANT-APPELLANT.
PAUL G. DELL, BUFFALO, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PAUL G. DELL, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered September 9, 2020. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree.
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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). As defendant contends, and the People correctly concede, the waiver of the right to appeal is invalid 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 [4th Dept 2021], lv denied 37 N.Y.3d 965 [2021]; see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]). Further, although the record reflects that defendant signed a written waiver at some point, we may not "consider whether that document corrected any defects in the court's oral colloquy because '[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it'" (People v DeMarco, 191 A.D.3d 1428, 1428 [4th Dept 2021], lv denied 36 N.Y.3d 1119 [2021]; see generally People v Bradshaw, 18 N.Y.3d 257, 262 [2011]). We nonetheless conclude that the sentence is not unduly harsh or severe.