| People v Dozier |
| 2020 NY Slip Op 00693 [179 AD3d 1447] |
| January 31, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Darnell Dozier, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered April 5, 2017. The judgment convicted defendant upon his plea of guiltyof attempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]), defendant contends that his waiver of the right to appeal is invalid. We agree. Thebest practice is for the court to use the Model Colloquy, which "neatly synthesizes. . . the governing principles" (People v Thomas, 34 NY3dat 565 [Nov. 26, 2019], citing NY ModelColloquies, Waiver of Right to Appeal,http://www.nycourts.gov/judges/cji/8-Colloquies/1MCTOC.shtml). Here, in describingthe nature of defendant's right to appeal and the breadth of the waiver of that right,Supreme Court said only: "[T]his case will be over and . . . will go nofurther." Although no "particular litany" is required for a waiver of the right to appeal tobe valid (People v Lopez, 6NY3d 248, 256 [2006]; see People v Johnson [appeal No. 1], 169 AD3d1366, 1366 [4th Dept 2019], lv denied 33 NY3d 949 [2019]), defendant's waiverof the right to appeal was invalid because the court mischaracterized it as an "absolutebar" to the taking of an appeal (Thomas, 34 NY3d 545, 567).
Nevertheless, we have reviewed defendant's remaining contentions and conclude thatnone warrant reversal or modification of the judgment. Present—Whalen, P.J.,Centra, Lindley, Troutman and Winslow, JJ.