THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT HUMPHREY DEFENDANT APPELLANT (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of two counts of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). We agree with defendant that the waiver of the right to appeal is not valid because County Court's oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal (People v Thomas, 34 NY3d 545, 565 [2019], cert denied – US –, 140 S Ct 2634 [2020]; see People v Williams, 186 AD3d 1112, 1113 [4th Dept 2020]). Further, although defendant also signed a written waiver of the right to appeal at that time, we may not consider whether that document corrected any defects in the court's oral colloquy because “[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it” (People v Bradshaw, 18 NY3d 257, 262 [2011]; see People v Mobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: July 28, 2023

Ann Dillon Flynn

Clerk of the Court