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People v. Mack

Supreme Court, Appellate Division, Fourth Department, New York.
Mar 19, 2021
192 A.D.3d 1495 (N.Y. App. Div. 2021)

Opinion

253 KA 17-00688

03-19-2021

The PEOPLE of the State of New York, Respondent, v. Tajmier M. MACK, Defendant-Appellant.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, 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 attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid because Supreme Court provided defendant with erroneous information about the scope of the waiver, including characterizing the waiver as an absolute bar to the taking of an appeal (see People v. Thomas , 34 N.Y.3d 545, 560-564, 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] ). The better practice is for the court to use the Model Colloquy, "which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). Nevertheless, the sentence is not unduly harsh or severe.


Summaries of

People v. Mack

Supreme Court, Appellate Division, Fourth Department, New York.
Mar 19, 2021
192 A.D.3d 1495 (N.Y. App. Div. 2021)
Case details for

People v. Mack

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Tajmier M. MACK…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Mar 19, 2021

Citations

192 A.D.3d 1495 (N.Y. App. Div. 2021)
192 A.D.3d 1495

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People v. Mack

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