Opinion
2022-00531
01-28-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MUHAMMAD IRVING, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered July 2, 2019. The judgment convicted defendant upon a plea of guilty of burglary in the third degree (two counts).
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 two counts of burglary in the third degree (Penal Law § 140.20). As defendant contends and the People correctly concede, defendant's purported waiver of the right to appeal is invalid. During the plea colloquy, County Court" 'conflated the right to appeal with those rights automatically forfeited by the guilty plea'" (People v Chambers, 176 A.D.3d 1600, 1600 [4th Dept 2019], lv denied 34 N.Y.3d 1076 [2019]; see People v Mothersell, 167 A.D.3d 1580, 1581 [4th Dept 2018]) and, therefore, the record does not establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 N.Y.3d 248, 256 [2006]). In addition, the court's explanation that the waiver would foreclose any review by a higher court "utterly 'mischaracterized the nature of the right [that] defendant was being asked to cede'" (People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied ___ U.S. ___, 140 S.Ct. 2634 [2020]; see People v Youngs, 183 A.D.3d 1228, 1229 [4th Dept 2020], lv denied 35 N.Y.3d 1050 [2020]).
Although defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of the sentence, we nonetheless conclude that the sentence is not unduly harsh or severe.