People v Brown, 2020 NY Slip Op 00944 [180 AD3d 1341]

February 7, 2020

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

Gerald Brown, Appellant.

Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of counsel), for defendant-appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), for respondent.

Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered June 5, 2017. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the second degree.

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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We agree with defendant that he did not validly waive his right to appeal because County Court’s oral colloquy “utterly ‘mischaracterized the nature of the right’ ” to appeal ( People v Thomas , 34 NY3d 545, 565 [2019]), inasmuch as “the court’s advisement as to the rights relinquished [by defendant] was incorrect and irredeemable under the circumstances” ( id. at 562). Specifically, the court erroneously informed defendant that, by waiving the right to appeal, he could obtain no further review of the conviction or sentence by a higher court—crucially omitting any mention of the several rights that survive the waiver of the right to appeal ( see id. at 562-567). Thus, the colloquy was insufficient to ensure that the waiver was voluntary, knowing, and intelligent ( see id. at 562-567). Nevertheless, we conclude that the sentence is not unduly harsh or severe. Present—Whalen, P.J., Curran, Troutman, Winslow and Bannister, JJ..