PEOPLE v. COLE (2020)

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 him upon his plea of guilty of driving while intoxicated (DWI) as a class D felony (Vehicle and Traffic Law §§ 1192[3];  1193[1][c][ii] ).  In appeal No. 2, defendant purports to appeal from a judgment revoking the sentence of probation previously imposed upon his conviction of DWI as a class E felony (§§ 1192[3];  1193[1][c][i] ) and imposing a sentence of incarceration upon his admission that he violated the terms and conditions of his probation.

With respect to appeal No. 1, defendant contends that his waiver of the right to appeal is invalid and that the sentence in that appeal is unduly harsh and severe.  With respect to appeal No. 2, defendant concedes that the sentence in that appeal has been discharged.  Inasmuch as defendant does not raise any contentions with respect to the judgment in appeal No. 2, we dismiss the appeal therefrom (see People v. Bertollini [appeal No. 2], 141 A.D.3d 1163, 1164, 37 N.Y.S.3d 649 [4th Dept. 2016] ).

In appeal No. 1, we agree with defendant that his waiver of the right to appeal is invalid.  During the plea proceeding, County Court mischaracterized the waiver of the right to appeal, portraying it in effect as an “absolute bar” to the taking of an appeal (People v. Thomas, 34 N.Y.3d 545, 559–62, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *8 [2019] ).  Nonetheless, we conclude that the sentence is not unduly harsh or severe.