Opinion
No. 973 KA 22-00343
12-22-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. AARON LUCAS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered June 29, 2018. The judgment convicted defendant upon his plea of guilty of rape in the first 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 rape in the first degree (Penal Law § 130.35 [1]). We agree with defendant that his waiver of the right to appeal is invalid because Supreme Court's "oral colloquy mischaracterized it as an absolute bar to the taking of an appeal" (People v McCrayer, 199 A.D.3d 1401, 1401 [4th Dept 2021]; see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied ___ U.S. ___, 140 S.Ct. 2634 [2020]; People v Schlifke, 210 A.D.3d 1518, 1518 [4th Dept 2022], lv denied 39 N.Y.3d 1080 [2023]). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it (see People v Bradshaw, 18 N.Y.3d 257, 262, 267 [2011]; People v Mobayed, 158 A.D.3d 1221, 1222 [4th Dept 2018], lv denied 31 N.Y.3d 1015 [2018]; People v Sanford, 138 A.D.3d 1435, 1436 [4th Dept 2016]). We nevertheless reject defendant's contention that the sentence is unduly harsh and severe.