Opinion
977 KA 19-01125
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Raaquim MCCRAYER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, WINSLOW, AND BANNISTER, 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 murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ). We affirm.
As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal. Although no "particular litany" is required for a waiver of the right to appeal to be valid ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), defendant's waiver of the right to appeal was invalid because Supreme Court's oral colloquy mischaracterized it as an absolute bar to the taking of an appeal (see 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] ; People v. Davis , 188 A.D.3d 1731, 1731, 136 N.Y.S.3d 638 [4th Dept. 2020], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 415, 174 N.E.3d 355 [2021] ). Although the record establishes that defendant executed a written waiver of the right to appeal, that 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. Sanford , 138 A.D.3d 1435, 1436, 30 N.Y.S.3d 440 [4th Dept. 2016] ).
Contrary to defendant's contention, however, we conclude that the sentence is not unduly harsh or severe.