| People v Childers |
| 2021 NY Slip Op 02649 |
| Decided on April 30, 2021 |
| 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 April 30, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
361 KA 20-00147
v
CHARLENE CHILDERS, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wayne County Court (Daniel G. Barrett, J.), rendered June 27, 2019. The judgment convicted defendant upon her plea of guilty of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). In appeal No. 2, defendant appeals from a judgment convicting her upon her plea of guilty of manslaughter in the first degree (§ 125.20 [1]). As defendant contends in both appeals, and the People correctly concede, defendant's waiver of the right to appeal is invalid because County Court mischaracterized it as an absolute bar to the taking of an appeal (see People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Harlee, 187 AD3d 1586, 1587 [4th Dept 2020], lv denied 36 NY3d 929 [2020]). The better practice is for the court to use the Model Colloquy, which " 'neatly synthesizes . . . the governing principles' " (People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lv denied 35 NY3d 941 [2020], quoting Thomas, 34 NY3d at 567; see NY Model Colloquies, Waiver of Right to Appeal). Nevertheless, contrary to defendant's contention in both appeals, the sentences are not unduly harsh or severe.
Entered: April 30, 2021
Mark W. Bennett
Clerk of the Court