| People v Somers |
| 2020 NY Slip Op 04707 [186 AD3d 1111] |
| August 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Deshaun Somers, Appellant. (Appeal No. 1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen N. McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedOctober 2, 2017. The judgment convicted defendant upon a plea of guilty of manslaughter in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him upon hisplea of guilty of manslaughter in the second degree (Penal Law § 125.15 [1]). Inappeal No. 2, he appeals from a judgment, also entered upon a plea of guilty, convicting him ofaggravated harassment of an employee by an inmate (§ 240.32). Defendantcontends in both appeals that he did not validly waive his right to appeal, and that the sentencesare unduly harsh and severe. We agree with defendant that he did not validly waive his right toappeal. Because County Court provided defendant with erroneous information about the scope ofthe waiver of the right to appeal, including characterizing that waiver as an absolute bar to thetaking of an appeal, we conclude that the colloquy was insufficient to ensure that the waiver wasvoluntary, knowing, and intelligent (seePeople v Thomas, 34 NY3d 545, 560-564 [2019], cert denied 589 US &mdash,— S Ct &mdash, 2020 WL 1496788, 2020 US LEXIS 1984 [Mar. 30, 2020]). The betterpractice is for the court to use the Model Colloquy, "which 'neatly synthesizes . . .the governing principles' " (People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lvdenied 35 NY3d 941 [2020], quoting Thomas, 34 NY3d at 567; see NYModel Colloquies, Waiver of Right to Appeal,http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).Nevertheless, we conclude that the sentences are not unduly harsh or severe.Present—Smith, J.P., Carni, NeMoyer, Troutman and Bannister, JJ.