People v. Horning

People v Horning (2025 NY Slip Op 04432)

People v Horning

2025 NY Slip Op 04432

Decided on July 25, 2025

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 July 25, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: BANNISTER, J.P., SMITH, GREENWOOD, NOWAK, AND HANNAH, JJ.
595 KA 23-00316

TINA L. HARTWELL, PUBLIC DEFENDER, UTICA (DAVID A. COOKE OF COUNSEL), FOR DEFENDANT-APPELLANT.

TODD C. CARVILLE, DISTRICT ATTORNEY, UTICA (MICHAEL A. LABELLA OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered December 3, 2021. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the first degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted rape in the first degree (Penal Law §§ 110.00, former 130.35 [2]). We agree with defendant that his 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 Durie, 216 AD3d 1449, 1449 [4th Dept 2023] [internal quotation marks omitted]; see People v Youngs, 183 AD3d 1228, 1228 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Entered: July 25, 2025

Ann Dillon Flynn

Clerk of the Court