Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Matthew ALLEN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered September 27, 2012. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). As the People correctly concede, defendant did not knowingly, voluntarily, and intelligently waive his right to appeal. “Despite the existence of a written appeal waiver form signed by defendant and his attorney, no questions were asked of defendant about the appeal waiver and his understanding thereof” (People v. Frysinger, 111 A.D.3d 1397, 1398, 974 N.Y.S.2d 860 ; see People v. Briglin, 125 A.D.3d 1518, 1518–1519, 4 N.Y.S.3d 437, lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 ). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and NEMOYER, JJ., concur.