| People v Johnson |
| 2021 NY Slip Op 01607 [192 AD3d 1494] |
| March 19, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Riza J. Johnson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered November 7, 2016. The judgment convicted defendant upon a plea of guilty of criminalpossession of a weapon in the second degree (two counts), criminal possession of a controlledsubstance in the third degree (two counts), resisting arrest, and unlawful possession ofmarihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and two counts of criminal possession of a controlledsubstance in the third degree (§ 220.16 [1]). As defendant contends and the Peoplecorrectly concede, the record does not establish that defendant validly waived his right to appeal.Supreme Court's oral waiver colloquy and the written waiver signed by defendant together"mischaracterized the nature of the right that defendant was being asked to cede, portraying thewaiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel andpoor person relief, as well as a bar to all postconviction relief, and there is no clarifying languagein either the oral or written waiver indicating that appellate review remained available for certainissues" (People v Stenson, 179AD3d 1449, 1449 [4th Dept 2020], lv denied 35 NY3d 974 [2020]; see People v Thomas, 34 NY3d545, 564-565 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v McMillian, 185 AD3d1420, 1421 [4th Dept 2020], lv denied 35 NY3d 1096 [2020]). We thus concludethat defendant's purported waiver is not enforceable inasmuch as the totality of the circumstancesfails to reveal that defendant "understood the nature of the appellate rights being waived"(Thomas, 34 NY3d at 559). Although we are thus not precluded from reviewingdefendant's challenge to the severity of his sentence, we nevertheless conclude that the sentenceis not unduly harsh or severe. We note, however, that the certificate of conviction incorrectlyreflects that defendant was sentenced to five years of postrelease supervision on each count ofcriminal possession of a controlled substance in the third degree, and it must therefore beamended to reflect that he was sentenced to three years of postrelease supervision on thosecounts (see People v Tumolo, 149AD3d 1544, 1544 [4th Dept 2017], lv denied 29 NY3d 1087 [2017]).Present—Peradotto, J.P., Carni, NeMoyer, Troutman and Winslow, JJ.