Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Dionte CARROLL, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (John Gilsenan, of the Pennsylvania and Michigan Bars, Admitted Pro Hac Vice, of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (John Gilsenan, of the Pennsylvania and Michigan Bars, Admitted Pro Hac Vice, of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). We agree with defendant that the waiver of the right to appeal is invalid because " ‘the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ " (People v. Jones, 107 A.D.3d 1589, 1589, 966 N.Y.S.2d 724, lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 ). Contrary to the People's contention, the written waiver of the right to appeal, which was not signed until sentencing, does not serve to validate the otherwise inadequate oral waiver where, as here, "there is no indication that [the court] obtained a knowing and voluntary waiver of that right at the time of the plea" (People v. Sims, 129 A.D.3d 1509, 1510, 12 N.Y.S.3d 682, lv. denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 ; see People v. Lawson [Appeal No. 7], 124 A.D.3d 1249, 1250, 999 N.Y.S.2d 640). We nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.