| 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), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., ofcounsel), 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 ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty 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 hisright to appeal because County Court's oral colloquy "utterly 'mischaracterized the natureof the right' " to appeal (People v Thomas, 34 NY3d 545, 565 [2019]), inasmuch as "the court's advisement as tothe rights relinquished [by defendant] was incorrect and irredeemable under thecircumstances" (id. at 562). Specifically, thecourt erroneously informed defendant that, by waiving the right to appeal, he couldobtain no further review of the conviction or sentence by a higher court—cruciallyomitting any mention of the several rights that survive the waiver of the right to appeal(see id. at 562-567). Thus, the colloquy wasinsufficient to ensure that the waiver was voluntary, knowing, and intelligent (seeid. at 562-567). Nevertheless, we conclude that thesentence is not unduly harsh or severe. Present—Whalen, P.J., Curran, Troutman,Winslow and Bannister, JJ.