Opinion
1218 KA 16-00760
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Billy T. DAVIS, Defendant-Appellant.
LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN 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: On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree ( Penal Law § 130.65 [3] ), defendant contends that his waiver of the right to appeal was confusing and inaccurate and thus invalid. We agree. We conclude on this record that 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. 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] ). The better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( id. at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing NY Model Colloquies, Waiver of Right to Appeal).
Nevertheless, we reject defendant's contention that the sentence is unduly harsh and severe.