Opinion
No. 555 KA 23-00270
09-27-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. IONA E. WHITE, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, GREENWOOD, AND KEANE, JJ.
Appeal from a judgment of the Jefferson County Court (David A. Renzi, J.), rendered September 19, 2022. The judgment convicted defendant, upon her plea of guilty, of criminal possession of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her, upon her plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]) and, in appeal No. 2, she appeals from a judgment convicting her, upon her plea of guilty, of criminal possession of a controlled substance in the third degree (§ 220.16 [1]) under a separate indictment. Defendant contends in each appeal that her waiver of the right to appeal is invalid and that her sentence is unduly harsh and severe. We agree with defendant that her waivers of the right to appeal are invalid. Both written waivers used overbroad language that" 'mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as an absolute bar to defendant taking an appeal'" (People v Johnson, 192 A.D.3d 1494, 1495 [4th Dept 2021], lv denied 37 N.Y.3d 965 [2021]; see People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]; People v St. Denis, 207 A.D.3d 1084, 1084 [4th Dept 2022]), and the oral colloquies did not cure those defects (see Thomas, 34 N.Y.3d at 566; People v Fernandez, 218 A.D.3d 1257, 1258 [4th Dept 2023], lv denied 40 N.Y.3d 1012 [2023]; People v Rumph, 207 A.D.3d 1209, 1210 [4th Dept 2022], lv denied 39 N.Y.3d 1075 [2023]). Nevertheless, we conclude in each appeal that the sentence is not unduly harsh or severe.