Opinion
451 KA 18-00078
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Joseph W. SHANTZ, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the supplemental sex offender victim fee, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of unlawful surveillance in the second degree ( Penal Law § 250.45 [2] ), defendant contends that his waiver of the right to appeal is invalid because Supreme Court's explanation thereof was confusing and inaccurate. We agree. 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 People v. Thomas , 34 N.Y.3d 545, 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] ; see NY Model Colloquies, Waiver of Right to Appeal). Here, by telling defendant that the waiver meant that he was giving up his right to appeal any aspect of his case and that any attempt to appeal would likely result in the appellate court refusing to even hear such an appeal, the court "mischaracterized the waiver of the right to appeal, portraying it in effect as an ‘absolute bar’ to the taking of an appeal" ( People v. Cole , 181 A.D.3d 1329, 1330, 121 N.Y.S.3d 766 [4th Dept. 2020], quoting Thomas , 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Moreover, the colloquy lacked adequate clarifying language indicating that the right to take an appeal was retained; instead, when the court solicited defendant's understanding of its explanation, defendant indicated that he understood the waiver to preclude an appeal and the court failed to correct defendant's misunderstanding (see Thomas , 34 N.Y.3d at 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; 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] ; cf. People v. Morrison , 179 A.D.3d 1454, 1455, 114 N.Y.S.3d 917 [4th Dept. 2020], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 5, 148 N.E.3d 469 [2020] ). We thus 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" ( Thomas , 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Youngs , 183 A.D.3d 1228, 1228-1229, 121 N.Y.S.3d 701 [4th Dept. 2020] ). As defendant further contends and the People correctly concede, the court erred in imposing a supplemental sex offender victim fee inasmuch as defendant was convicted of an offense contained in article 250 of the Penal Law (see § 60.35 [1] [b] ). Although defendant correctly concedes that he failed to preserve his contention for our review (see People v. Coleman , 170 A.D.3d 1661, 1661, 94 N.Y.S.3d 897 [4th Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 57, 129 N.E.3d 377 [2019] ; People v. Parker , 137 A.D.3d 1625, 1626, 27 N.Y.S.3d 305 [4th Dept. 2016] ), we exercise our power to review the contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ), and we modify the judgment by vacating the supplemental sex offender victim fee (see People v. Arnold , 107 A.D.3d 1526, 1528, 967 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 953, 977 N.Y.S.2d 185, 999 N.E.2d 550 [2013] ).