People v. Harris

• Citation: 201 A.D.3d 1030,156 N.Y.S.3d 766 (Mem)
• Decision Date: 06 January 2022
• Docket Number: 110867
• Parties: The PEOPLE of the State of New York, Respondent, v. Marc HARRIS, Also Known as Merc and Smoke, Appellant.
• Court: New York Supreme Court Appellate Division

201 A.D.3d 1030
156 N.Y.S.3d 766 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Marc HARRIS, Also Known as Merc and Smoke, Appellant.

110867

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2021
Decided and Entered: January 6, 2022

Adam G. Parisi, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

201 A.D.3d 1030

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 1, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and purportedly waived his right to appeal. Supreme Court sentenced defendant, a second felony offender, to a prison term of seven years followed by five years of postrelease supervision. Defendant appeals.

We agree with defendant's contention that his waiver of the right to appeal was invalid. The written appeal waiver executed by defendant was overbroad, as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ; People v. Ghee, 195 A.D.3d 1244, 1244, 145 N.Y.S.3d 872 [2021], lvs denied 37 N.Y.3d 992, 152 N.Y.S.3d 410, 411, 174 N.E.3d 350, 351 [2021]). Furthermore, the oral colloquy was insufficient to cure the multiple mischaracterizations in the written waiver or to demonstrate that defendant understood the nature and consequences of the waiver of appellate rights (see People v. Bisono, 36 N.Y.3d at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ;

156 N.Y.S.3d 767

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