Opinion
956 KA 19-00152
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Joshua ORTIZ, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND MONTOUR, 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 rape in the second degree ( Penal Law § 130.30 [1] ). As defendant contends and the People correctly concede, the record does not establish that defendant validly waived his right to appeal. Here, the rights encompassed by defendant's purported waiver of the right to appeal "were mischaracterized during the oral colloquy and in [the] written form[ ] executed by defendant[ ], which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and ... advised that the waiver encompassed ‘collateral relief on certain nonwaivable issues in both state and federal courts’ " ( People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 566, 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. Montgomery , 191 A.D.3d 1418, 1418-1419, 138 N.Y.S.3d 414 [4th Dept. 2021], lv denied 36 N.Y.3d 1122, 146 N.Y.S.3d 195, 169 N.E.3d 553 [2021] ). We conclude that defendant's purported waiver is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" ( Thomas , 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see Montgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ; People v. Stenson , 179 A.D.3d 1449, 1449, 114 N.Y.S.3d 926 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 39, 148 N.E.3d 503 [2020] ). Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence (see Montgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ), we nevertheless conclude that the sentence is not unduly harsh or severe.