Opinion
727 KA 17-01712
10-01-2021
The PEOPLE of the State of New York, Respondent, v. Wilbert A. JACKSON, II, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, 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 a plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. Although language in the written waiver form arguably portrays the waiver as an absolute bar to the taking of an appeal (see generally People v. Thomas , 34 N.Y.3d 545, 564-567, 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. Kubiak , 195 A.D.3d 1451, 1451, 145 N.Y.S.3d 471 [4th Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 426, 174 N.E.3d 366 [2021] ), a trial court's "oral colloquy with defendant ... can cure incorrect language in the written waiver form" ( Thomas , 34 N.Y.3d at 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Here, County Court informed defendant during the oral colloquy that he was giving up "most claims of error," with the exception of those "errors that survive the waiver of the right to appeal," including, for example, whether defendant's plea is voluntary, whether he was denied effective assistance of counsel, and whether he was competent to understand the legal proceedings and to stand trial (see NY Model Colloquies, Waiver of Right to Appeal; cf. People v. Murray-Adams , 195 A.D.3d 1450, 1450, 145 N.Y.S.3d 460 [4th Dept. 2021] ; Kubiak , 195 A.D.3d at 1451, 145 N.Y.S.3d 471 ). Moreover, the court specifically informed defendant that a notice of appeal could and would be filed (see NY Model Colloquies, Waiver of Right to Appeal). Given that language in the court's oral colloquy, we conclude that the record establishes that 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 ), and thus the "appeal waiver was knowingly and voluntarily entered and sufficiently comprehensive to cover [defendant's] appellate challenge to the suppression ruling – without any need for express mention of it during the waiver colloquy" ( id. at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).