        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

975
KA 12-02180
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ARTHUR E. MASON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LAW OFFICE OF GUY A. TALIA, ROCHESTER (GUY A. TALIA OF COUNSEL),
FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (PATRICIA L. DZIUBA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered July 18, 2012. The judgment convicted
defendant, upon his plea of guilty, of forgery 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 him upon his plea of guilty of forgery in the second degree
(Penal Law § 170.10 [1]) and, in appeal No. 2, he appeals from a
judgment convicting him upon his plea of guilty of bail jumping in the
second degree (§ 215.56). In 2010, defendant pleaded guilty to
forgery and signed a drug court contract providing that, if he
completed a drug court program, he would be allowed to withdraw his
plea and instead plead guilty to a misdemeanor. The contract further
provided that, if defendant was terminated from the program, he would
be sentenced to a term of imprisonment. Defendant left the state for
several months and, when he was returned on a bench warrant in 2012,
he admitted that he violated the drug court contract, pleaded guilty
to bail jumping, and was sentenced to consecutive indeterminate terms
of imprisonment.

     Contrary to the People’s contention in both appeals, defendant
did not validly waive his right to appeal. Although the drug court
contract contained a written waiver of the right to appeal, County
Court did not conduct any colloquy concerning that waiver at the plea
proceeding in 2010, and we conclude that the contract alone is
insufficient to establish a valid waiver in appeal No. 1 (see People v
Brown, 140 AD3d 1682, 1683; People v Jones, 118 AD3d 1354, 1354, lv
denied 24 NY3d 961; see generally People v Bradshaw, 18 NY3d 257,
265). In addition, during the proceedings in 2012, defendant did not
                                 -2-                           975
                                                         KA 12-02180

waive his right to appeal at the time that he admitted to violating
the drug court contract and pleaded guilty to bail jumping. He
purported to waive that right at sentencing, but the waiver “was not
mentioned until after [he] pleaded guilty,” and we therefore conclude
that it was not effective with respect to either appeal (People v
Blackwell, 129 AD3d 1690, 1690, lv denied 26 NY3d 926; see People v
Ties, 132 AD3d 558, 558; cf. People v Collins, 53 AD3d 932, 933, lv
denied 11 NY3d 831). Nevertheless, on the merits, we conclude that
the sentence in each appeal is not unduly harsh or severe.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
