PEOPLE v. DOZIER (2020)

MEMORANDUM AND ORDER

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 attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]), defendant contends that his waiver of the right to appeal is invalid. We agree. The best practice is for the court to use the Model Colloquy, which “neatly synthesizes ․ the governing principles” (People v. Thomas, 34 N.Y.3d 545, 567, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *7 [Nov. 26, 2019] , citing N.Y. Model Colloquies, Waiver of Right to Appeal). Here, in describing the nature of defendant's right to appeal and the breadth of the waiver of that right, Supreme Court said only: “[T]his case will be over and ․ will go no further.” Although no “particular litany” is required for a waiver of the right to appeal to be valid (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; see People v. Johnson, (Aappeal No. 1), 169 A.D.3d 1366, 1366, 92 N.Y.S.3d 770 (4th Dept. 2019), lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019]), defendant's waiver of the right to appeal was invalid because the court mischaracterized it as an “absolute bar” to the taking of an appeal (Thomas, 34 N.Y.3d at 576–78, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 WL 6312521 ).

Nevertheless, we have reviewed defendant's remaining contentions and conclude that none warrant reversal or modification of the judgment.