Opinion
1129 KA 18-02405
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Marvin JOHNSON, Jr., Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, 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 his plea of guilty of, inter alia, attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). Initially, we agree with defendant that his 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, 111 N.Y.S.3d 149 [4th Dept. 2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 180, 139 N.E.3d 838 [2019] ; see People v. Mothersell , 167 A.D.3d 1580, 1581, 90 N.Y.S.3d 466 [4th Dept. 2018] ) and, thus, 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, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Moreover, the court's sole explanation that the waiver would foreclose any review by a higher court "utterly ‘mischaracterized the nature of the right [to appeal that] ... defendant was being asked to cede’ " ( 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] ; see People v. Youngs , 183 A.D.3d 1228, 1229, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] ). Although the purported waiver of the right to appeal is not enforceable and thus does not preclude our review of defendant's challenge to the severity of his sentence, we nevertheless conclude that the sentence is not unduly harsh or severe.