Opinion
No. 737 KA 23-00853
11-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. HASHA OUTLEY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTINE BIALY-VIAU OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTINE BIALY-VIAU OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., BANNISTER, OGDEN, NOWAK, AND DELCONTE, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered June 1, 2022. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a weapon in the second degree, reckless endangerment in the first degree, unlawful fleeing a police officer in a motor vehicle in the third degree and tampering with physical evidence.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), reckless endangerment in the first degree (§ 120.25), unlawful fleeing a police officer in a motor vehicle in the third degree (§ 270.25), and tampering with physical evidence (§ 215.40 [2]).
We agree with defendant that her waiver of the right to appeal was invalid. County Court's oral colloquy "mischaracterized [the waiver] 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 [2019], cert denied ___ U.S. ___, 140 S.Ct. 2634 [2020]) and, 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 [she] understood the written waiver or... had read the waiver before signing it" (People v Augello, 222 A.D.3d 1398, 1399 [4th Dept 2023], lv denied 41 N.Y.3d 942 [2024]). Nonetheless, we conclude that the sentence is not unduly harsh or severe.