| People v Harlee |
| 2020 NY Slip Op 05386 [187 AD3d 1586] |
| October 2, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jasmine Harlee, Appellant. |
Ryan James Muldoon, Auburn, for defendant-appellant.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered August23, 2018. The judgment convicted defendant upon a plea of guilty of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of murderin the second degree (Penal Law § 125.25 [1]), defendant contends that herpurported waiver of the right to appeal is not valid and challenges the severity of thesentence.
We agree with defendant that the "purported waiver of the right to appeal is not enforceableinasmuch as the totality of the circumstances fails to reveal that defendant 'understood the natureof the appellate rights being waived' " (People v Youngs, 183 AD3d 1228, 1228 [4th Dept 2020], lvdenied 35 NY3d 1050 [2020], quoting People v Thomas, 34 NY3d 545, 559 [2019], cert denied589 US &mdash, 140 S Ct 2634 [Mar. 30, 2020]). Here, "[t]he written waiver of the right toappeal signed by defendant [at the time of the plea] and the verbal waiver colloquy conducted by[County Court] together improperly characterized the waiver as 'an absolute bar to the taking of adirect appeal and the loss of attendant rights to counsel and poor person relief' " (People v McMillian, 185 AD3d1420, 1421 [4th Dept 2020], quoting Thomas, 34 NY3d at 565). In particular, thewritten waiver, upon which the court relied in eliciting defendant's understanding during theverbal waiver colloquy, mischaracterized the appeal waiver as constituting an absolute bar to thetaking of a first-tier direct appeal and even improperly stated that the rights defendant waswaiving included the right "to prosecute the appeal as a poor person, to have an attorney assignedin the event that [she was] indigent, and to submit a brief and/or to argue before the appellatecourt on any issues relating to the conviction or sentence" (see Thomas, 34 NY3d at 554,566; Youngs, 183 AD3d at 1229). Where, as here, the "trial court has utterly'mischaracterized the nature of the right a defendant was being asked to cede,' [this] '[C]ourtcannot be certain that the defendant comprehended the nature of the waiver of appellaterights' " (Thomas, 34 NY3d at 565-566; see Youngs, 183 AD3d at1229).
We nevertheless reject defendant's challenge to the severity of the sentence.Present—Centra, J.P., Peradotto, NeMoyer, Troutman and Winslow, JJ.