Opinion
1429 KA 17–00963
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Marion D. MCILWAIN, Defendant–Appellant.
THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, assault in the first degree ( Penal Law § 120.10[4] ), defendant contends that the waiver of the right to appeal is not valid and challenges the severity of the sentence. Even assuming, arguendo, that defendant's oral waiver of the right to appeal was knowing, intelligent and voluntary, we conclude, and the People correctly concede, that the oral waiver does not encompass his challenge to the severity of the sentence because " ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction’ that he was also waiving his right to appeal any issue concerning the severity of the sentence" ( People v. Lorenz, 119 A.D.3d 1450, 1450, 988 N.Y.S.2d 904 [4th Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ; see People v. Kearns, 125 A.D.3d 1473, 1473–1474 [4th Dept. 2015], lv denied 26 N.Y.3d 1040, 43 N.E.3d 380 [2015] ). Furthermore, as the People also correctly concede, although the record indicates that defendant signed a written waiver, the written waiver was invalid inasmuch as there was "not even an attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ( People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). 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.