Opinion
295 KA 16-02344
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Timothy J. NATHAN, Jr., Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, 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, inter alia, criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that the sentence is unduly harsh and severe. Initially, we note that "defendant's release to parole supervision does not render his challenge to the severity of the sentence moot because he remains under the control of the Parole Board until his sentence has terminated" ( People v. Williams , 160 A.D.3d 1470, 1471, 72 N.Y.S.3d 906 [4th Dept. 2018] [internal quotation marks omitted]; see People v. Shaland S. , 187 A.D.3d 1683, 1684, 133 N.Y.S.3d 375 [4th Dept. 2020], lv denied 36 N.Y.3d 1053, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2021] ; People v. Fox , 173 A.D.3d 1680, 1681, 99 N.Y.S.3d 906 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 685, 130 N.E.3d 1295 [2019] ). In addition, as the People correctly concede, Supreme Court provided defendant 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. Therefore, we conclude that the colloquy was insufficient to ensure that defendant's waiver was voluntary, knowing, and intelligent (see People v. Bisono , 36 N.Y.3d 1013, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 N.Y. Slip Op. 07484, *2 [2020] ; 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] ). The better practice is for the court "to use the Model Colloquy, which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). Nevertheless, we further conclude that the sentence is not unduly harsh or severe.