Opinion
1150 KA 18-02059
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Cedric TOWNES, Defendant-Appellant. (Appeal no. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree ( Penal Law § 160.15 [3] ). In appeal No. 2, he appeals from a judgment convicting him upon a plea of guilty of attempted burglary in the second degree (§§ 110.00, 140.25 [2] ). The two pleas were entered in a single plea proceeding. In both appeals, defendant contends that his waiver of the right to appeal is invalid and that the sentences are unduly harsh and severe. As the People correctly concede, defendant's waiver of the right to appeal was invalid because Supreme Court mischaracterized it as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 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 People v. Dozier , 179 A.D.3d 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] ). We reiterate that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing NY Model Colloquies, Waiver of Right to Appeal).
Nevertheless, contrary to defendant's contention in both appeals, the sentences are not unduly harsh or severe. We note, however, that the certificate of conviction in appeal No. 2 incorrectly reflects that the sentence in appeal No. 2 is to run concurrently with the sentence in appeal No. 1, and it therefore must be amended to reflect that the sentences are to run consecutively to one another (see People v. Brinson , 155 A.D.3d 1598, 1599, 64 N.Y.S.3d 443 [4th Dept. 2017] ; see generally People v. Lemon , 38 A.D.3d 1298, 1300, 832 N.Y.S.2d 718 [4th Dept. 2007], lv denied 9 N.Y.3d 846, 840 N.Y.S.2d 773, 872 N.E.2d 886 [2007], reconsideration denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 [2007] ).