| People v Murray-Adams |
| 2021 NY Slip Op 03739 [195 AD3d 1450] |
| June 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Murray-Adams, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Jessica N. Carbone of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.),rendered November 29, 2018. The judgment convicted defendant upon a plea of guilty ofburglary in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, burglary in the first degree (Penal Law § 140.30 [2]), defendant contends thathe did not validly waive his right to appeal and that the sentence is unduly harsh and severe. Weagree with defendant that he did not validly waive his right to appeal. Supreme Court provideddefendant with erroneous information about the scope of the waiver of the right to appeal,including characterizing it as an absolute bar to the taking of an appeal, and we thus concludethat the colloquy was insufficient to ensure that defendant's waiver of the right to appeal wasvoluntary, knowing, and intelligent (seePeople v Thomas, 34 NY3d 545, 564-567 [2019], cert denied 589 US &mdash,140 S Ct 2634 [2020]). We note that "[t]he better practice is for the court to use the ModelColloquy, which neatly synthesizes . . . the governing principles" (People v Somers, 186 AD3d 1111,1112 [4th Dept 2020], lv denied 36 NY3d 976 [2020] [internal quotation marks omitted];see Thomas, 34 NY3d at 567; NY Model 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 sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Curran, Winslow and DeJoseph,JJ.