People v. Mejia

189 A.D.3d 2163

134 N.Y.S.3d 916 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jonathan MEJIA, Defendant-Appellant.

1231

KA 19-00971

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

Entered: December 23, 2020

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, 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 burglary in the first degree ( Penal Law § 140.30 [1] ). We agree with defendant that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-567, 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] ; People v. Somers , 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020] ; People v. Brown , 180 A.D.3d 1341, 1341, 115 N.Y.S.3d 734 [4th Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ), and we note that the better practice is for County 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], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal). We reject defendant's contention that the court abused its discretion in declining to grant him youthful offender status (see People v. Johnson , 182 A.D.3d 1036, 1036, 120 N.Y.S.3d 902 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 849, 151 N.E.3d 530 [2020] ), and we decline defendant's request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see People v. Nicorvo [Appeal No. 2], 177 A.D.3d 1408, 1409, 114 N.Y.S.3d 541 [4th Dept. 2019] ). Finally, the sentence is not unduly harsh or severe.