| People v Byrd |
| 2020 NY Slip Op 01754 [181 AD3d 1183] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bryant Byrd, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a resentence of the Monroe County Court (Victoria M. Argento, J.),rendered February 25, 2016. Defendant was resentenced upon his conviction of burglaryin the second degree.
It is hereby ordered that the resentence so appealed from is unanimouslyaffirmed.
Memorandum: Defendant was convicted, upon his guilty plea, of burglary in thesecond degree (Penal Law § 140.25 [2]), and he now appeals from aresentence with respect to that conviction. We agree with defendant that his waiver of theright to appeal is invalid. County Court mischaracterized the nature of the right thatdefendant was being asked to waive inasmuch as the court stated that the waiver was anabsolute bar to taking an appeal, as well as a bar to all postconviction relief (seePeople v Thomas, 34 NY3d 545, 564-566 [2019]).Additionally, there is "no clarifying language in either the oral or written waiverindicating that appellate review remained available for certain issues" (People v Stenson, 179 AD3d1449, 1449 [4th Dept 2020]). Thus, although defendant may challenge the severityof his sentence, we nevertheless conclude that the sentence is not unduly harsh or severe.Present—Whalen, P.J., Centra, Curran, Winslow and Bannister,JJ.