People v. Durie

216 A.D.3d 1449

188 N.Y.S.3d 329

The PEOPLE of the State of New York, Respondent,

v.Peter S. DURIE, Defendant-Appellant.

364

KA 21-01053

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 5, 2023

NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT-APPELLANT.

BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, 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 grand larceny in the fourth degree ( Penal Law § 155.30 [1] ). We agree with defendant that his "purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant ‘understood the nature of the appellate rights being waived’ " ( People v. Youngs , 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 559, 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. Johnson , 195 A.D.3d 1422, 1423, 147 N.Y.S.3d 862 [4th Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 336, 346, 180 N.E.3d 500, 510 [2021]; People v. Mazaika , 191 A.D.3d 1419, 1419, 138 N.Y.S.3d 416 [4th Dept. 2021] ). First, contrary to the People's assertion and defendant's incorrect concession (see generally People v. Berrios , 28 N.Y.2d 361, 366-367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ; People v. Morrison , 179 A.D.3d 1454, 1455, 114 N.Y.S.3d 917 [4th Dept. 2020], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 5, 148 N.E.3d 469 [2020] ), Supreme Court employed " ‘misleading’ language[ that] confus[ed] the discrete concepts of the forfeiture of a right by operation of law and ... intentional relinquishment of a right by a voluntary waiver" ( Thomas , 34 N.Y.3d at 562, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Lopez , 6 N.Y.3d 248, 256-257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Inasmuch as the court "conflated the right to appeal with those rights automatically forfeited by the guilty plea" ( People v. Garcia , 203 A.D.3d 1585, 1585, 161 N.Y.S.3d 919 [4th Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 868, 193 N.E.3d 533 [2022] [internal quotation marks omitted]), the record 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" ( Lopez , 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see Garcia , 203 A.D.3d at 1586, 161 N.Y.S.3d 919 ). In addition, although the court employed a "few correctly spoken terms" ( Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), it nevertheless incorrectly "suggest[ed] that the waiver may be an absolute bar to the taking of an appeal" ( id. at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see Youngs , 183 A.D.3d at 1228-1229, 121 N.Y.S.3d 701 ). "Although ambiguities in a court's explanation may be cured by adequate clarifying language, which may be provided either in a written waiver or in the oral colloquy[,]" we conclude that "such language is absent from the record in the appeal[ ] before us" ( People v. Parker , 189 A.D.3d 2065, 2066, 138 N.Y.S.3d 758 [4th Dept. 2020], lv denied 36 N.Y.3d 1122, 146 N.Y.S.3d 191, 229, 169 N.E.3d 549, 587 [2021]). In this case, " ‘[g]reater precision in the court[’s] oral colloqu[y]’—such as that found in the Model Colloquy for the waiver of the right to appeal, which ‘neatly synthesizes ... the governing principles and provides a solid reference for a better practice’—was required to ensure that defendant's waiver[ was] knowing, voluntary, and intelligent" ( id. , quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

Defendant further contends that his sentence is unduly harsh and severe. Preliminarily, we are "compelled to emphasize once again that, ‘[c]ontrary to the People's contention, and as we have previously noted, it is well settled that this Court's sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court ..., and that we may substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ " ( People v. Cutaia , 167 A.D.3d 1534, 1535, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019] ; see People v. Spencer , 197...