Opinion
1214 KA 15-02118
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Derrick R. WILLIAMS, Jr., Defendant-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, 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 controlled substance in the fourth degree ( Penal Law § 220.09 [1] ). We agree with defendant that his waiver of the right to appeal is not valid inasmuch as County Court conflated the right to appeal with those rights automatically forfeited by the guilty plea (see People v. Hawkins , 94 A.D.3d 1439, 1439-1440, 942 N.Y.S.2d 300 [4th Dept. 2012], lv denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012] ). Thus, the record fails to establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Bradshaw , 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Further, the court's oral colloquy "utterly ‘mischaracterized the nature of the right [to appeal that] ... defendant was being asked to cede’ " ( People v. Thomas , 34 N.Y.3d 545, 565, 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] ), inasmuch as "the court's advisement as to the rights relinquished [by defendant] was incorrect and irredeemable under the circumstances" ( id. at 562, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
To the extent that defendant challenges the voluntariness of his plea and insofar as his brief may be read as challenging the factual sufficiency of his plea allocution, those challenges are unpreserved for our review because defendant withdrew his motion to withdraw his guilty plea at sentencing (see People v. Cantey , 161 A.D.3d 1449, 1450, 77 N.Y.S.3d 761 [3d Dept. 2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ). Further, this case does not fall within the rare exception to the preservation requirement (see People v. Toxey , 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 [1995], rearg denied 86 N.Y.2d 839, 634 N.Y.S.2d 447, 658 N.E.2d 225 [1995] ), and we decline to exercise our power to address defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).