Opinion
06-30-2017
The PEOPLE of the State of New York, Respondent, v. John HOMER, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (John J. 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 J. 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: WHALEN, P.J., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree ( Penal Law § 120.05[9] ). 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. Carroll, 148 A.D.3d 1546, 1546, 49 N.Y.S.3d 808 [internal quotation marks omitted]; see People v. Harris, 148 A.D.3d 1694, 1694, 48 N.Y.S.3d 906, lv. denied 29 N.Y.3d 1032, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [May 26, 2017] ; cf. People v. Massey, 149 A.D.3d 1524, 1525, 53 N.Y.S.3d 766 ). Moreover, the colloquy concerning the waiver of the right to appeal, which was immediately preceded by a colloquy concerning the rights automatically forfeited by a guilty plea, conflated the right to appeal with the rights forfeited by a guilty plea (cf. Massey, 149 A.D.3d at 1525, 53 N.Y.S.3d 766 ). "[T]he 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’ " ( Carroll, 148 A.D.3d at 1546–1547, 49 N.Y.S.3d 808 ). Nevertheless, considering defendant's criminal record, which includes two prior felony convictions, we perceive no basis upon which to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.