Opinion
433 KA 19-00654
06-03-2022
The PEOPLE of the State of New York, Respondent, v. Stephen A. ZABKO, Defendant-Appellant.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree ( Penal Law § 140.20 ), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe.
Initially, contrary to defendant's contention, the record establishes that, before defendant pleaded guilty, County Court mentioned that a waiver of the right to appeal would be a condition of the plea bargain (see People v. Rohadfox , 175 A.D.3d 1813, 1814, 109 N.Y.S.3d 537 [4th Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 743, 138 N.E.3d 472 [2019] ; cf. People v. Willis , 161 A.D.3d 1584, 1584, 77 N.Y.S.3d 259 [4th Dept. 2018] ; People v. Blackwell , 129 A.D.3d 1690, 1690, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). The court also "made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham , 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], quoting People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Nonetheless, as defendant contends and the People correctly concede, the "purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant ‘understood the nature of the appellate rights being waived’ " ( People v. Youngs , 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 559, 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] ). Here, "[t]he written waiver of the right to appeal signed by defendant [at the time of the plea] and the verbal waiver colloquy conducted by [the court] together improperly characterized the waiver as ‘an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief,’ as well as to ‘all postconviction relief separate from the direct appeal’ " ( 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], quoting Thomas , 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Harlee , 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020] ). Moreover, neither the written waiver nor the colloquy contained adequate "clarifying language ... that appellate review remained available for certain issues," thereby "indicating ... that the right to take an appeal was retained" ( Thomas , 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Parker , 189 A.D.3d 2065, 2066, 138 N.Y.S.3d 758 [4th Dept. 2020], lv denied 36 N.Y.3d 1122, 146 N.Y.S.3d 191, 169 N.E.3d 549 [2021] ; People v. Shantz , 186 A.D.3d 1076, 1077, 127 N.Y.S.3d 383 [4th Dept. 2020] ). Where, as here, the "trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ [this] ‘[C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ " ( Thomas , 34 N.Y.3d at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see Harlee , 187 A.D.3d at 1587, 131 N.Y.S.3d 760 ; Youngs , 183 A.D.3d at 1229, 121 N.Y.S.3d 701 ).
Although we are thus not precluded from reviewing defendant's challenge to the severity of his sentence, we nevertheless conclude that the negotiated sentence is not unduly harsh or severe.