THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSHUA WRIGHT DEFENDANT APPELLANT (2021)

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 plea of guilty of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]). As the People correctly concede, defendant's purported waiver of the right to appeal is invalid. During the plea colloquy, County Court “ ‘conflated the right to appeal with those rights automatically forfeited by the guilty plea’ ” (People v Chambers, 176 AD3d 1600, 1600 [4th Dept 2019], lv denied 34 NY3d 1076 [2019]; see People v Mothersell, 167 AD3d 1580, 1581 [4th Dept 2018]) and, therefore, the record does not establish that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]). Moreover, the court's explanation that the waiver would foreclose any review by a higher court “utterly ‘mischaracterized the nature of the right [to appeal that] ․ defendant was being asked to cede’ ” (People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see People v Youngs, 183 AD3d 1228, 1229 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]).

Although the waiver of the right to appeal is invalid and does not preclude consideration of defendant's challenge to the severity of the sentence, we nonetheless conclude that it is not unduly harsh or severe.

Entered: April 30, 2021

Mark W. Bennett

Clerk of the Court