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The People of the State of New York v. Eziekiel Smith

New York v. Eziekiel Smith

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Julie Cianca, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant-Appellant. Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of Counsel), for Respondent. Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered September 17, 2019. The judgment convicted defendant, upon a plea of guilty, of assault in the second degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him, upon a plea of guilty, of assault in the second degree (Penal Law § 120.05 [3]) and, in appeal No. 2, from a judgment convicting him, upon a plea of guilty, of burglary in the second degree (§ 140.25 [2]). As defendant contends in both appeals and the People correctly concede, the respective waivers of defendant’s right to appeal are invalid inasmuch as the written waivers and oral waiver colloquies ” ‘mischaracterized the nature of the right[s] that defendant was being asked to cede, portraying the waiver[s] as [overly broad and] an absolute bar to defendant taking an appeal’ ” (People v. Johnson, 192 AD3d 1494, 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v. Thomas, 34 NY3d 545, 565 [2019], cert denied — US —, 140 S Ct 2634 [2020]). Nonetheless, in both appeals we reject defendant’s contention that his sentences are unduly harsh and severe. We do not address defendant’s remaining contentions in appeal Nos. 1 and 2 because they were withdrawn by defendant.

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