Opinion
437 KA 18-01091
06-03-2022
The PEOPLE of the State of New York, Respondent, v. Jason M. CURRY, Defendant-Appellant.
JILL PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
JILL PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER 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 attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe.
We initially note that defendant is subject to an undischarged period of postrelease supervision, and thus, contrary to the contention of the People, this appeal is not moot (cf. People v. Finch , 137 A.D.3d 1653, 1655, 28 N.Y.S.3d 190 [4th Dept. 2016] ; People v. Heatherly , 132 A.D.3d 1277, 1279, 17 N.Y.S.3d 220 [4th Dept. 2015] ).
We agree with defendant that, inasmuch as Supreme Court provided him with erroneous information about the scope of the waiver of the right to appeal and failed to identify that certain rights would survive the waiver, the colloquy was insufficient to ensure that he knowingly, voluntarily and intelligently waived his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 564-568, 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] ). Nevertheless, the sentence is not unduly harsh or severe.