PEOPLE v. WHITE (2024)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her, upon her plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]) and, in appeal No. 2, she appeals from a judgment convicting her, upon her plea of guilty, of criminal possession of a controlled substance in the third degree (§ 220.16 [1]) under a separate indictment. Defendant contends in each appeal that her waiver of the right to appeal is invalid and that her sentence is unduly harsh and severe. We agree with defendant that her waivers of the right to appeal are invalid. Both written waivers used overbroad language that “ ‘mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as an absolute bar to defendant taking an appeal’ ” (People v. Johnson, 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021]; see People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; People v. St. Denis, 207 A.D.3d 1084, 1084, 169 N.Y.S.3d 573 [4th Dept. 2022]), and the oral colloquies did not cure those defects (see Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Fernandez, 218 A.D.3d 1257, 1258, 194 N.Y.S.3d 632 [4th Dept. 2023], lv denied 40 N.Y.3d 1012, 199 N.Y.S.3d 12, 222 N.E.3d 528 [2023]; People v. Rumph, 207 A.D.3d 1209, 1210, 170 N.Y.S.3d 806 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 777, 204 N.E.3d 413 [2023]). Nevertheless, we conclude in each appeal that the sentence is not unduly harsh or severe.