THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. EZIEKIEL SMITH DEFENDANT APPELLANT APPEAL NO (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him, upon a plea of guilty, of assault in the second degree (Penal Law § 120.05 [3]) and, in appeal No. 2, from a judgment convicting him, upon a plea of guilty, of burglary in the second degree (§ 140.25 [2]). As defendant contends in both appeals and the People correctly concede, the respective waivers of defendant's right to appeal are invalid inasmuch as the written waivers and oral waiver colloquies “ ‘mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as [overly broad and] an absolute bar to defendant taking an appeal’ ” (People v Johnson, 192 AD3d 1494, 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US —, 140 S Ct 2634 [2020]). Nonetheless, in both appeals we reject defendant's contention that his sentences are unduly harsh and severe.

We do not address defendant's remaining contentions in appeal Nos. 1 and 2 because they were withdrawn by defendant.

Entered: February 2, 2024

Ann Dillon Flynn

Clerk of the Court