| People v Kubiak |
| 2021 NY Slip Op 03741 [195 AD3d 1451] |
| June 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Gene A. Kubiak, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Robert R. Calli, Jr., of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (John H. Crandall, J.), rendered July10, 2019. The judgment convicted defendant upon a plea of guilty of criminal possession of aweapon in the third degree.
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 criminalpossession of a weapon in the third degree (Penal Law § 265.02 [7]), defendantcontends that he did not validly waive his right to appeal and that the sentence is unduly harshand severe. We agree with defendant that he did not validly waive his right to appeal. As thePeople correctly concede, County Court provided defendant with erroneous information aboutthe scope of the waiver of the right to appeal, including characterizing it as an absolute bar to thetaking of an appeal, and we thus conclude that the colloquy was insufficient to ensure thatdefendant's waiver of the right to appeal was voluntary, knowing, and intelligent (see People v Thomas, 34 NY3d545, 564-567 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]). We notethat "[t]he better practice is for the court to use the Model Colloquy, which neatly synthesizes. . . the governing principles" (People v Somers, 186 AD3d 1111, 1112 [4th Dept 2020], lvdenied 36 NY3d 976 [2020] [internal quotation marks omitted]; see Thomas, 34NY3d 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.