Opinion
717 KA 18-02223
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Antwuan J. WASHINGTON, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, 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] ). Preliminarily, as defendant correctly contends and the People do not dispute, the record does not establish that defendant validly waived his right to appeal. Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together ‘mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues’ " ( People v. Johnson , 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021] ; see People v. Shanks , 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [2021] ; People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ). Although we are thus not precluded from reviewing defendant's challenge to the severity of the period of postrelease supervision imposed by the court, we nevertheless conclude that such aspect of his sentence is not unduly harsh or severe.