People v Frias, 180 AD3d 704 (2d Dept 2020), lv denied 35 NY3d 970 (2020) 87. People v Stenson, 179 AD3d 1449 (4th Dept 2020), lv denied 35 NY3d 974 (2020) 88. People v Dozier, 179 AD3d 1447 (4th Dept 2020), lv denied 35 NY3d 941 (2020) 89.
87. People v. Stenson, 179 A.D.3d 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)
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; see Montgomery, 191 A.D.3d at 1419; People v Stenson, 179 A.D.3d 1449, 1449 [4th Dept 2020], lv denied 35 N.Y.3d 974 [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)
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] ; seePeople 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 ; seeMontgomery , 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 (seeMontgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ), we nevertheless conclude that the sentence is not unduly harsh or severe.
] 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] ; seePeople 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" ( Thoma s, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; seeMontgomery , 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, we nevertheless conclude that the sentence is not unduly harsh or severe.
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 [2020], quoting People v Thomas, 34 N.Y.3d 545, 566 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]; see People v Montgomery, 191 A.D.3d 1418, 1418-1419 [4th Dept 2021], lv denied 36 N.Y.3d 1122 [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" (Thoma s, 34 N.Y.3d at 559; see Montgomery, 191 A.D.3d at 1419; People v Stenson, 179 A.D.3d 1449, 1449 [4th Dept 2020], lv denied 35 N.Y.3d 974 [2020]). Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence, we nevertheless conclude that the sentence is not unduly harsh or severe.
ich 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] ; seePeople v. Montgomery , 191 A.D.3d 1418, 1418-1419, 138 N.Y.S.3d 414 [4th Dept. 2021], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 WL 1921570 [Apr. 28, 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 ; seeMontgomery , 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 ( seeMontgomery , 191 A.D.3d at 1419, 138 N.Y.S.3d 414 ), we nevertheless conclude that the sentence is not unduly harsh or severe.
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 [2020], quoting People v Thomas, 34 N.Y.3d 545, 566 [2019], cert denied U.S. &mdash, 140 S.Ct. 2634 [2020]; see People v Montgomery, 191 A.D.3d 1418, 1418-1419 [4th Dept 2021], lv denied N.Y.3d [Apr. 28, 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; see Montgomery, 191 A.D.3d at 1419; People v Stenson, 179 A.D.3d 1449, 1449 [4th Dept 2020], lv denied 35 N.Y.3d 974 [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), we nevertheless conclude that the sentence is not unduly harsh or severe.
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 NY3d 1013, 1017-1018 [2020], quoting People v Thomas, 34 NY3d 545, 566 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see People v Montgomery, 191 AD3d 1418, 1418-1419 [4th Dept 2021], lv denied — NY3d — [Apr. 28, 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 NY3d at 559; see Montgomery, 191 AD3d at 1419; People v Stenson, 179 AD3d 1449, 1449 [4th Dept 2020], lv denied 35 NY3d 974 [2020]). Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence (see Montgomery, 191 AD3d at 1419), we nevertheless conclude that the sentence is not unduly harsh or severe.
As defendant contends and the People correctly concede, the record does not establish that defendant validly waived his right to appeal. Supreme Court's oral waiver colloquy and the written waiver signed by defendant together "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues" (People v Stenson, 179 AD3d 1449, 1449 [4th Dept 2020], lv denied 35 NY3d 974 [2020]; see People v Thomas, 34 NY3d 545, 564-565 [2019], cert denied — US —, 140 S Ct 2634 [2020]; People v McMillian, 185 AD3d 1420, 1421 [4th Dept 2020], lv denied 35 NY3d 1096 [2020]). We thus 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 NY3d at 559).