Opinion
422 KA 16-00928
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Taquan JONES, Defendant-Appellant.
ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
ANTHONY F. BRIGANO, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, 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 robbery in the first degree ( Penal Law § 160.15 [4] ), defendant contends that his sentence is unduly harsh and severe. Initially, we note that defendant waived his right to appeal, but we conclude that the waiver is invalid. County Court mischaracterized the waiver of the right to appeal as an absolute bar to defendant taking a direct appeal, with no clarifying language in either the oral colloquy or the written waiver that certain issues remain available for appellate review. We therefore conclude that the colloquy and written waiver were insufficient to ensure that the waiver was voluntary, knowing, and intelligent (see People v.Thomas , 34 N.Y.3d 545, 562-567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, ––– S.Ct. ––––, 206 L.Ed.2d 512 [Mar. 30, 2020] ; People v. Brown , 180 A.D.3d 1341, 1341, 115 N.Y.S.3d 734 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ; People v. Stenson , 179 A.D.3d 1449, 1449, 114 N.Y.S.3d 926 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 39, 148 N.E.3d 503 [2020] ). We nevertheless conclude that the sentence is not unduly harsh or severe.