People v Smith, 2024 NY Slip Op 00564 [224 AD3d 1307]
February 2, 2024
Appellate Division, Fourth Department
[*1]
The People of the State of New York, Respondent,
v
Eziekiel Smith, Appellant. (Appeal No. 1.)
Julie Cianca, Public Defender, Rochester (James A. Hobbs of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered September 17, 2019. The judgment convicted defendant, upon a plea of guilty, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him, upon a plea of guilty, of assault in the second degree (Penal Law § 120.05 [3]) and, in appeal No. 2, from a judgment convicting him, upon a plea of guilty, of burglary in the second degree (§ 140.25 [2]). As defendant contends in both appeals and the People correctly concede, the respective waivers of defendant’s right to appeal are invalid inasmuch as the written waivers and oral waiver colloquies “ ’mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as [overly broad and] an absolute bar to defendant taking an appeal’ ” ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas , 34 NY3d 545 , 565 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]). Nonetheless, in both appeals we reject defendant’s contention that his sentences are unduly harsh and severe.
We do not address defendant’s remaining contentions in appeal Nos. 1 and 2 because they were withdrawn by defendant. Present—Lindley, J.P., Curran, Bannister, Greenwood and DelConte, JJ..