| People v Crogan |
| 2020 NY Slip Op 01794 [181 AD3d 1212] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Calvin D. Crogan, Appellant. |
David J. Farrugia, Public Defender, Lockport (Theresa L. Prezioso of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel),for respondent.
Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), renderedMarch 29, 2019. The judgment convicted defendant upon a plea of guilty of attemptedassault in the first 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 attempted assault in the first degree (Penal Law §§ 110.00,120.10 [1]). We agree with defendant that he did not validly waive his right to appealbecause County Court's oral colloquy "utterly 'mischaracterized the nature of theright' " to appeal (People v Thomas, 34 NY3d 545, 565 [2019]), inasmuch as "the court's advisement as to the rightsrelinquished [by defendant] was incorrect and irredeemable under the circumstances"(id. at 562). Because the court provideddefendant with erroneous information about the scope of the waiver of the right to appealand failed to identify the several rights that would survive that waiver, we conclude thatthe colloquy was insufficient to ensure that the waiver was voluntary, knowing, andintelligent (see id. at 564-568). Nevertheless, weconclude that the sentence is not unduly harsh or severe. Present—Smith, J.P.,Centra, Lindley, Curran and DeJoseph, JJ.