Opinion
242 KA 15–01818
03-16-2018
The PEOPLE of the State of New York, Respondent, v. James D. WISNER, Defendant–Appellant.
MICHAEL G. CIANFARANO, OSWEGO, FOR DEFENDANT–APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
MICHAEL G. CIANFARANO, OSWEGO, FOR DEFENDANT–APPELLANT.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the first degree ( Penal Law § 265.04[2] ), defendant contends that he did not validly waive his right to appeal and that the sentence is unduly harsh and severe. We agree with defendant that his purported waiver of the right to appeal is not valid inasmuch as "the perfunctory 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. Beaver, 128 A.D.3d 1493, 1494, 7 N.Y.S.3d 816 [4th Dept. 2015] [internal quotation marks omitted] ). Although "[a] detailed written waiver can supplement a court's on-the-record explanation of what a waiver of the right to appeal entails, ... a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal" ( People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] [internal quotation marks omitted] ). Here, although defendant signed such a written waiver, "the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant's understanding thereof" ( id. ; see People v. Welcher, 138 A.D.3d 1481, 1482, 30 N.Y.S.3d 461 [4th Dept. 2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). We thus conclude that, "despite defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver" ( People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] [internal quotation marks omitted] ). 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.