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THE APPEAL WAIVER WAS INVALID AND THE SENTENCE WAS UNDULY HARSH (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid and his sentence was unduly harsh. The sentences were modified to run concurrently, not consecutively:

We agree with defendant that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant “understood the nature of the appellate rights being waived” … . Here, County Court provided no oral explanation of the waiver of the right to appeal and the written waiver executed by defendant “mischaracterized the waiver of the right to appeal, portraying it in effect as an absolute bar to the taking of an appeal” … . We note that the better practice is for the court to use the Model Colloquy, which “neatly synthesizes . . . the governing principles” … . People v Smith, 2021 NY Slip Op 01666, Fourth Dept 3-19-21

 

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