| People v Wasyl |
| 2020 NY Slip Op 04675 [186 AD3d 1071] |
| August 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert Wasyl, Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Laura Theresa Jordan of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered February8, 2019. The judgment convicted defendant, upon a plea of guilty, of attempted burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]).We agree with defendant that his waiver of the right to appeal is invalid. County Courtmischaracterized the nature of the right that defendant was being asked to cede by portraying thewaiver as an absolute bar to defendant taking an appeal, and there is no clarifying language ineither the oral or written waiver indicating that appellate review remained available for certainissues. Furthermore, the record fails to establish that defendant "read and understood the contentsof the written waiver that he executed during the proceeding" (People v Miller, 161 AD3d 1579,1579 [4th Dept 2018], lv denied 31 NY3d 1119 [2018]; see generally People v Bradshaw, 18NY3d 257, 265 [2011]). We therefore conclude that the waiver of appeal was not knowingand voluntary (see People vThomas, 34 NY3d 545, 564-565 [2019], cert denied 589 US &mdash, —S Ct &mdash, 2020 WL 1496788, 2020 US LEXIS 1984 [Mar. 30, 2020]; see generally People v Lopez, 6 NY3d248, 256 [2006]). We nevertheless conclude that the negotiated sentence, which is thestatutory minimum sentence (see Penal Law § 70.08 [2], [3] [c]), cannot becharacterized as unduly harsh or severe (see People v Laury, 156 AD3d 1473, 1473-1474 [4th Dept 2017],lv denied 32 NY3d 939 [2018]; see also People v Carter, 280 AD2d 977, 978 [4thDept 2001], lv denied 96 NY2d 860 [2001]). Present—Centra, J.P., NeMoyer,Troutman, Winslow and Bannister, JJ.