ALBANY — The Appellate Division of state Supreme Court ruled Thursday that Fulton County Court — in convicting a Gloversville man last year of felony criminal mischief — presented him with an “invalid” waiver of the right to appeal,
But the error was not enough to overturn the conviction of 25-year-old Drake C. Dolder. Appellate judges upheld the conviction of the Woods Hollow Road man.
He is currently a prisoner at the Five Points Correctional Facility in Romulus, with his earliest release date being January.
Dolder was convicted May 22, 2018, sentenced as a second felony offender to 1 1/2 to three years in state prison, but he appealed. The case was prosecuted by Fulton County District Attorney Chad Brown’s office.
The Rural Law Center of New York represented Dolder.
The appellate court on Thursday agreed with Dolder that his waiver of the right to appeal was “invalid.”
“County Court’s brief colloquy with defendant, wherein the court advised defendant that he could challenge his conviction ‘in a higher court,’ was insufficient to apprise defendant of the separate and distinct nature of the waiver of the right to appeal and to ensure that defendant understood the appellate rights that he was relinquishing,” appellate judges ruled.
Although Dolder also executed a written waiver of appeal, the judges stated: “County Court failed to ascertain whether defendant had read the waiver, understood its contents and/or had discussed the ramifications thereof with counsel.” As the waiver of appeal was ruled invalid, the court said Dolder was not precluded from challenging the perceived severity of his sentence.
But the court also ruled that upon reviewing the record of Dolder’s case, “We find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice.” Accordingly, Dolder’s conviction was affirmed
Dolder was sentenced May 22, 2018 by County Court Judge Louise Sira to 1 1/2 to three years in state prison.
He had been arrested by Johnstown police at 12:26 a.m. Nov. 8, 2017 on charges of third-degree criminal mischief, consumption of alcohol in a motor vehicle, driving while ability impaired, unsafe backing, second-degree reckless endangerment and second-degree escape.
Police said Dolder was charged on South Melcher Street in Johnstown. Police were investigating a family offense when Dolder intentionally backed his car into a marked police car. While at the police station at City Hall on East Main Street, police said Dolder escaped from custody for a very short period of time, but was apprehended and charged with escape.
For the family offense, Dolder, was charged with felony third-degree criminal mischief, fourth-degree criminal mischief, second-degree unlawful imprisonment, third-degree assault, and criminal obstruction of breathing.
Michael Anich covers Johnstown and Fulton County news. He can be reached at [email protected]