| People v Cole |
| 2020 NY Slip Op 02008 [181 AD3d 1329] |
| March 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Cole, Appellant. (Appeal No.1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Mark C. Davison 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 (Robert L. Bauer, A.J.),rendered February 3, 2017. The judgment convicted defendant upon a plea of guilty ofdriving while intoxicated, as a class D felony.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of driving while intoxicated (DWI) as a class D felony (Vehicleand Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]). In appeal No. 2,defendant purports to appeal from a judgment revoking the sentence of probationpreviously imposed upon his conviction of DWI as a class E felony(§§ 1192 [3]; 1193 [1] [c] [i]) and imposing a sentence ofincarceration upon his admission that he violated the terms and conditions of hisprobation.
With respect to appeal No. 1, defendant contends that his waiver of the right toappeal is invalid and that the sentence in that appeal is unduly harsh and severe. Withrespect to appeal No. 2, defendant concedes that the sentence in that appeal has beendischarged. Inasmuch as defendant does not raise any contentions with respect to thejudgment in appeal No. 2, we dismiss the appeal therefrom (see People v Bertollini[appeal No. 2], 141 AD3d 1163, 1164 [4th Dept 2016]).
In appeal No. 1, we agree with defendant that his waiver of the right to appeal isinvalid. During the plea proceeding, County Court mischaracterized the waiver of theright to appeal, portraying it in effect as an "absolute bar" to the taking of an appeal(People v Thomas 34 NY3d 545, 568-570 [2019]). Nonetheless, we conclude that the sentence is not unduly harsh or severe.Present—Smith, J.P., Carni, NeMoyer, Curran and Bannister, JJ.