Opinion
No. 571 KA 21-00784
07-01-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARCUS ST. DENIS, DEFENDANT-APPELLANT. (APPEAL NO. 2.)
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), rendered May 4, 2016. The judgment convicted defendant upon his plea of guilty of sexual abuse in the first degree.
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 sexual abuse in the first degree (Penal Law § 130.65 [1]). We agree with defendant that his waiver of the right to appeal is invalid because Supreme Court's oral colloquy used overbroad language that mischaracterized the wavier as an "absolute bar" to the taking of an appeal (People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]; see People v DeMarco, 191 A.D.3d 1428, 1428 [4th Dept 2021], lv denied 36 N.Y.3d 1119 [2021]; People v Shantz, 186 A.D.3d 1076, 1077 [4th Dept 2020]). We nevertheless conclude that the sentence is not unduly harsh or severe. Finally, the certificate of conviction and the uniform sentence and commitment form incorrectly reflect that defendant was sentenced as a second felony offender and must be amended to reflect that he was sentenced as a second violent felony offender (see People v Seymore, 188 A.D.3d 1767, 1770 [4th Dept 2020], lv denied 36 N.Y.3d 1100 [2021]).