| People v Youngs |
| 2020 NY Slip Op 02558 [183 AD3d 1228] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1](May 1, 2020)
| The People of the State of New York,Respondent, v Daniel K. Youngs, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Robert R. Calli of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Donald E. Todd, A.J.),rendered January 6, 2017. The judgment convicted defendant upon a plea of guilty ofrape in the first degree, criminal sexual act in the first degree and attempted sexual abusein 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 rape in the first degree (Penal Law § 130.35 [3]), criminal sexualact in the first degree (§ 130.50 [1]), and attempted sexual abuse in the firstdegree (§§ 110.00, 130.65 [1]).
We conclude that defendant's purported waiver of the right to appeal is notenforceable inasmuch as the totality of the circumstances fails to reveal that defendant"understood the nature of the appellate rights being waived" (People v Thomas, 34 NY3d 545, 559 [2019]). County Court's oral explanation of the waiver suggested thatdefendant was entirely ceding any ability to challenge his guilty plea on appeal, but suchan "improper description of the scope of the appellate rights relinquished by the waiver isrefuted by . . . precedent, whereby a defendant retains the right to appellatereview of very selective fundamental issues, including the voluntariness of the plea"(id. at 566). In addition, by further explaining that the cost of the plea bargain was thatdefendant would no longer have the right ordinarily afforded to other defendants toappeal to a higher court any decision the court had made, the court "mischaracterized thewaiver of the right to appeal, portraying it in effect as an 'absolute bar' to the taking of anappeal" (People v Cole, 181AD3d 1329, 1330 [4th Dept 2020]; see Thomas, 34 NY3d at 565). The written waiver executed by defendant did not contain clarifyinglanguage; instead, it perpetuated the mischaracterization that the appeal waiverconstituted an absolute bar to the taking of a first-tier direct appeal and even stated thatthe rights defendant was waiving included the "right to have an attorney appointed" if hecould not afford one and the "right to submit a brief and argue before an appellate courtissues relating to [his] sentence and conviction" (see Thomas, 34 NY3d at 554, 578). Where, as here, the "trial court has utterly 'mischaracterized thenature of the right a defendant was being asked to cede,' [this] '[C]ourt cannot be certainthat the defendant comprehended the nature of the waiver of appellate rights' "(id. at 565).
Although the purported waiver of the right to appeal is not enforceable and thus doesnot preclude our review of defendant's challenge to the severity of his sentence, wenevertheless conclude that the sentence is not unduly harsh or severe.Present—Peradotto, J.P., Carni, Curran, Winslow and DeJoseph,JJ.