Opinion
731 KA 19-01030
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Jquane WASHINGTON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, MONTOUR, AND GREENWOOD, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We agree with defendant, and the People correctly concede, that his waiver of the right to appeal is invalid because Supreme Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of the waiver and failed to identify that certain rights would survive the waiver (see People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ; People v. Washington , 208 A.D.3d 1649, 1649, 174 N.Y.S.3d 666 [4th Dept. 2022], lv denied 39 N.Y.3d 965, 179 N.Y.S.3d 171, 200 N.E.3d 116 [2022] ; People v. McMillian , 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020] ).
Defendant's challenge to the constitutionality of Penal Law § 265.03 in light of the United States Supreme Court's decision in ( New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022] ) is not preserved for our review (see CPL 470.05 [2] ; People v. McWilliams , 214 A.D.3d 1328, 1329, 186 N.Y.S.3d 470 [4th Dept. 2023], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 674, 211 N.E.3d 1127 [2023] ; People v. Jacque-Crews , 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ). For the reasons stated in People v. McWilliams , we reject defendant's contention that his constitutional challenge to his conviction is exempt from preservation (see McWilliams , 214 A.D.3d at 1329-1330, 186 N.Y.S.3d 470 ). We decline to exercise our power to review defendant's challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
The sentence is not unduly harsh or severe.