| People v Shantz |
| 2020 NY Slip Op 04680 [186 AD3d 1076] |
| August 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph W. Shantz, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of counsel), fordefendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), renderedSeptember 9, 2016. The judgment convicted defendant upon his plea of guilty of unlawfulsurveillance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the supplemental sex offendervictim fee, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of unlawfulsurveillance in the second degree (Penal Law § 250.45 [2]), defendant contends thathis waiver of the right to appeal is invalid because Supreme Court's explanation thereof wasconfusing and inaccurate. We agree. The better practice is for the court to use the ModelColloquy, which " 'neatly synthesizes . . . the governing principles' "(People v Dozier, 179 AD3d1447, 1447 [4th Dept 2020], lv denied 35 NY3d 941 [2020], quoting People v Thomas, 34 NY3d 545,567 [2019], cert denied 589 US &mdash, — S Ct &mdash, 2020 WL 1496788,2020 US LEXIS 1984 [Mar. 30, 2020]; see NY Model Colloquies, Waiver of Right toAppeal,http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).Here, by telling defendant that the waiver meant that he was giving up his right to appeal anyaspect of his case and that any attempt to appeal would likely result in the appellate courtrefusing to even hear such an appeal, the court "mischaracterized the waiver of the right toappeal, portraying it in effect as an 'absolute bar' to the taking of an appeal" (People v Cole, 181 AD3d 1329,1330 [4th Dept 2020], quoting Thomas, 34 NY3d at 564). Moreover, the colloquy lackedadequate clarifying language indicating that the right to take an appeal was retained; instead,when the court solicited defendant's understanding of its explanation, defendant indicated that heunderstood the waiver to preclude an appeal and the court failed to correct defendant'smisunderstanding (see Thomas, 34 NY3d at 564-566; People v Stenson, 179 AD3d 1449, 1449 [4th Dept 2020], lvdenied 35 NY3d 974 [2020]; cf.People v Morrison, 179 AD3d 1454, 1455 [4th Dept 2020], lv denied 35 NY3d972 [2020]). We thus conclude on this record that the purported waiver of the right to appeal isnot enforceable inasmuch as the totality of the circumstances fails to reveal that defendant"understood the nature of the appellate rights being waived" (Thomas, 34 NY3d at 559;see People v Youngs, 183 AD3d1228, 1228-1229 [4th Dept 2020]).
As defendant further contends and the People correctly concede, the court erred in imposinga supplemental sex offender victim fee inasmuch as defendant was convicted of an offensecontained in article 250 of the Penal Law (see § 60.35 [1] [b]). Althoughdefendant correctly concedes that he failed to preserve his contention for our review (see People v Coleman, 170 AD3d1661, 1661 [4th Dept 2019], lv denied 33 NY3d 1068 [2019]; People v Parker, 137 AD3d 1625,1626 [4th Dept 2016]), we exercise our power to review the contention as a matter of discretionin the interest of justice (see CPL 470.15 [3] [c]), and we modify the judgment byvacating the supplemental sex offender victim fee (see People v Arnold, 107 AD3d 1526, 1528 [4th Dept 2013], lvdenied 22 NY3d 953 [2013]). Present—Peradotto, J.P., Lindley, NeMoyer, Troutmanand DeJoseph, JJ.