PEOPLE v. GRAHAM (2023)

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, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Contrary to defendant's contention, the record establishes that he validly waived his right to appeal (see People v. Jenkins, 184 A.D.3d 1150, 1150, 123 N.Y.S.3d 887 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 403, 152 N.E.3d 1204 [2020]; People v. Work, 180 A.D.3d 1383, 1384, 116 N.Y.S.3d 629 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020]). At the plea proceeding, defendant acknowledged that he spoke with his attorney about the meaning of the waiver and stated that he understood the rights he was waiving. Although the language of the plea colloquy was overbroad, it was coupled with clarifying language in the written waiver stating that certain issues are not covered by the appeal waiver, including the legality of the sentence and plea (see generally People v. Thomas, 34 N.Y.3d 545, 557-563, 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]). Defendant's valid waiver of his right to appeal forecloses appellate review of his challenges to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]) and to Supreme Court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999]). Nevertheless, we reiterate that the better practice is for the court to use the Model Colloquy, “which ‘neatly synthesizes ․ the governing principles’ ” (People v. Dozier, 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas, 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970; see NY Model Colloquies, Waiver of Right to Appeal, https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf [last accessed April 4, 2023]).

Finally, we note that the uniform sentence and commitment form must be amended to correct a clerical error (see People v. Thurston, 208 A.D.3d 1629, 1630, 174 N.Y.S.3d 663 [4th Dept. 2022]). The uniform sentence and commitment form erroneously states that defendant was convicted of criminal mischief in the second degree under Penal Law § 142.10, and it should therefore be amended to correctly reflect that defendant was convicted of that offense under Penal Law § 145.10.