Opinion
100 KA 19-00110
03-17-2023
The PEOPLE of the State of New York, Respondent, v. Marlin JOSEPH, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, 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 attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal. Supreme Court's oral colloquy mischaracterized the waiver as absolute bar to the taking of an 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. Davis , 188 A.D.3d 1731, 1731, 136 N.Y.S.3d 638 [4th Dept. 2020], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 415, 174 N.E.3d 355 [2021] ). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the deficient oral colloquy (see Davis , 188 A.D.3d at 1732, 136 N.Y.S.3d 638 ).
Nevertheless, defendant's contention that the statute pursuant to which he was convicted is unconstitutional in light of the United States Supreme Court's decision in ( New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S. Ct. 2111, 213 L.Ed.2d 387 [2022] ) is not preserved for our review (see People v. Jacque-Crews , 213 A.D.3d 1335, 183 N.Y.S.3d 234, 2023 N.Y. Slip Op. 00785 [4th Dept. 2023] ; People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 392, 196 L.Ed.2d 308 [2016] ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.