People v. Marino , 2020 NY Slip Op 07822 ( 2020 )

People v Marino (2020 NY Slip Op 07822)

People v Marino

2020 NY Slip Op 07822

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: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND BANNISTER, JJ.

1226 KA 20-00056

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JEANA A. MARINO, DEFENDANT-APPELLANT.

NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered December 5, 2019. The judgment convicted defendant upon her 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 from a judgment convicting her upon her plea of guilty of assault in the second degree (Penal Law

§ 120.05 [2]). We agree with defendant that her waiver of the right to appeal is invalid. County Court "mischaracterized the nature of the right that defendant was being asked to cede by portraying the waiver as an absolute bar to defendant taking an appeal, and there is no clarifying language in . . . the oral . . . waiver indicating that appellate review remained available for certain issues" (People v Wasyl, 186 AD3d 1071, 1071 [4th Dept 2020]; see People v Thomas, 34 NY3d 545, 564-565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]). We nevertheless conclude that the sentence is not unduly harsh or severe.

Entered: December 23, 2020

Mark W. Bennett

Clerk of the Court