Opinion
925 KA 19-01491
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Rashaun CAMERON, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, 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 burglary in the second degree ( Penal Law § 140.25 [2] ). As defendant contends and the People correctly concede, his waiver of the right to appeal is invalid. There is no basis in the record upon which to conclude that Supreme Court "ensured that ... defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Thompson , 219 A.D.3d 1666, 1667, 197 N.Y.S.3d 625 [4th Dept. 2023] [internal quotation marks omitted]; see People v. Robbins , 213 A.D.3d 1278, 1279, 181 N.Y.S.3d 517 [4th Dept. 2023] ). In addition, the court mischaracterized the waiver as an "absolute bar" to the taking of an appeal ( 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] ; see People v. Marshall , 214 A.D.3d 1360, 1361, 185 N.Y.S.3d 457 [4th Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 520, 213 N.E.3d 662 [2023] ). Contrary to defendant's contention, however, the sentence is not unduly harsh or severe.