Opinion
956 KA 20-00598
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Marcus COSSETTE, Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. MARCUS COSSETTE, DEFENDANT-APPELLANT PRO SE. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
MARCUS COSSETTE, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, 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 sexual act in the first degree ( Penal Law § 130.50 [3] ). As an initial matter, we conclude that defendant's waiver of the right to appeal is invalid inasmuch as both the signed written waiver of the right to appeal and the oral waiver colloquy mischaracterized the nature of the right to appeal (see People v. Thomas , 34 N.Y.3d 545, 565-566, 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. Jones , 186 A.D.3d 1069, 1070, 127 N.Y.S.3d 361 [4th Dept. 2020] ).
Defendant contends in his pro se supplemental brief that the evidence is legally insufficient to support the conviction. However, defendant forfeited that contention by pleading guilty (see People v. Weakfall , 151 A.D.3d 1966, 1966, 54 N.Y.S.3d 910 [4th Dept. 2017] ; People v. Feidner , 109 A.D.3d 1086, 1086, 971 N.Y.S.2d 608 [4th Dept. 2013] ). Indeed, "it would be logically inconsistent to permit a defendant to enter a plea of guilty based on particular admitted facts, yet to allow that defendant contemporaneously to reserve the right to challenge on appeal the sufficiency of those facts to support a conviction, had there been a trial" ( People v. Plunkett , 19 N.Y.3d 400, 405-406, 948 N.Y.S.2d 233, 971 N.E.2d 363 [2012] ). Further, defendant's challenge in his pro se supplemental brief to the weight of the evidence is " ‘inapplicable’ inasmuch as he was convicted upon his plea of guilty, rather than upon a verdict following a trial" ( Feidner , 109 A.D.3d at 1086, 971 N.Y.S.2d 608 ; cf. People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).
Contrary to defendant's contentions in his main and pro se supplemental briefs, we conclude that the sentence is not unduly harsh or severe. We have considered the remaining contentions in defendant's pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.