Opinion
588.2 KA 18-00801
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Robert WOODWARD, Defendant-Appellant. (Appeal No. 2.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRENNA J. RYAN OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRENNA J. RYAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, 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 criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ) and criminal tax fraud in the third degree ( Tax Law § 1804 ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of identity theft in the first degree ( Penal Law § 190.80 ). We reject defendant's contention in appeal No. 1 that the sentence is unduly harsh and severe. With respect to appeal No. 2, we agree with defendant that his waiver of the right to appeal is invalid because County Court "conflated the right to appeal with those rights automatically forfeited by the guilty plea" ( People v. Rogers , 159 A.D.3d 1558, 1558, 72 N.Y.S.3d 758 [4th Dept. 2018], lv denied 31 N.Y.3d 1152, 83 N.Y.S.3d 434, 108 N.E.3d 508 [2018] ) and mischaracterized the waiver of the right to appeal, leading defendant to believe that the waiver was an absolute bar to taking an appeal (see 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] ). The record therefore does not establish that "defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ) or that he understood that the waiver was not an "absolute bar[ ] to the pursuit of all potential remedies" ( Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). We note that 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] [internal quotation marks omitted] ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.