| People v Davis |
| 2020 NY Slip Op 06896 [188 AD3d 1731] |
| November 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Sheahonnie Davis, Appellant. |
Belletier Law Office, Syracuse (Anthony Belletier of counsel), for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Darienn P. Balin of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), renderedAugust 24, 2018. The judgment convicted defendant upon a plea of guilty of attempted robberyin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]). Weaffirm.
We agree with defendant that she did not validly waive her right to appeal. Although no"particular litany" is required for a waiver of the right to appeal to be valid (People v Lopez, 6 NY3d 248, 256[2006]; see People v Johnson [appeal No. 1], 169 AD3d 1366, 1366 [4th Dept 2019],lv denied 33 NY3d 949 [2019]), defendant's waiver of the right to appeal was invalidbecause County Court's oral colloquy mischaracterized it as an "absolute bar" to the taking of anappeal (People v Thomas, 34 NY3d545, 565 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]; cf. Peoplev Cromie, 187 AD3d 1659 [4th Dept 2020]). We note that the better practice is for the court to use the ModelColloquy, which "neatly synthesizes . . . the governing principles" (Thomas,34 NY3d at 567, citing NY Model Colloquies, Waiver of Right to Appeal,http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).
Furthermore, the written waiver executed by defendant did not contain any clarifyinglanguage to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy'smischaracterization of the waiver of the right to appeal as an absolute bar to the taking of afirst-tier direct appeal and even stated that the rights defendant was waiving included the "right tohave an attorney appointed" if she could not afford one and the "right to submit a brief and arguebefore an appellate court issues relating to [her] sentence and conviction" (see id. at 554,564-566). Where, as here, the "trial court has utterly 'mischaracterized the nature of the right adefendant was being asked to cede,' [this] '[C]ourt cannot be certain that the defendantcomprehended the nature of the waiver of appellate rights' " (id. at 565-566).
Because the purported waiver of the right to appeal is unenforceable, it does not preclude ourreview of defendant's challenge to the court's refusal to grant her youthful offender status (see People v Johnson, 182 AD3d1036, 1036 [4th Dept 2020], lv denied 35 NY3d 1046 [2020]). Nevertheless, weconclude that the court did not abuse its discretion in declining to adjudicate defendant a youthfuloffender (see People v Simpson,182 AD3d 1046, 1046 [4th Dept 2020], lv denied 35 NY3d 1049 [2020]; People v Lewis, 128 AD3d 1400,1400 [4th Dept 2015], lv denied 25 NY3d 1203 [2015]; see generally People v Minemier, 29NY3d 414, 421 [2017]). In addition, having reviewed the applicable factors pertinent to ayouthful offender determination (seePeople v Keith B.J., 158 AD3d 1160, 1160 [4th Dept 2018]), we decline to exercise ourinterest of justice jurisdiction to grant her such status (see Simpson, 182 AD3d at 1046;Lewis, 128 AD3d at 1400-1401; cf. Keith B.J., 158 AD3d at 1161).
Finally, we note that we have not considered belated arguments not raised in defendant'sappellate brief, i.e., her contention that the sentence is unduly harsh and severe (see People vWeaver, 222 AD2d 1046, 1046 [4th Dept 1995], appeal denied 87 NY2d 1026[1996], cert denied 519 US 855 [1996]). Present—Peradotto, J.P., Carni, Lindley,Curran and Bannister, JJ.