| People v Davis |
| 2020 NY Slip Op 07820 |
| Decided on December 23, 2020 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 23, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
1218 KA 16-00760
v
BILLY T. DAVIS, DEFENDANT-APPELLANT.
LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered January 14, 2016. The judgment convicted defendant upon his plea of guilty of sexual abuse in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contends that his waiver of the right to appeal was confusing and inaccurate and thus invalid. We agree. We conclude on this record 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" (People v Thomas, 34 NY3d 545, 559 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]). The better practice is for the court to use the Model Colloquy, which "neatly synthesizes . . . the governing principles" (id. at 567, citing NY Model Colloquies, Waiver of Right to Appeal).
Nevertheless, we reject defendant's contention that the sentence is unduly harsh and severe.
Entered: December 23, 2020
Mark W. Bennett
Clerk of the Court