Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. James L. BLACKWELL, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35[1] ). We agree with defendant that the waiver of the right to appeal is not valid. In order for this Court to uphold a waiver of the right to appeal, "[t]he record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty—the right to remain silent, the right to confront one's accusers and the right to a jury trial, for example" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Such a waiver is ineffective where as here, defendant, notwithstanding a written waiver, "never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing" (People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Gibson, 147 A.D.3d 1507, 1507, 47 N.Y.S.3d 612 ). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SMITH, J.P., LINDLEY, DeJOSEPH, NEMOYER, and CURRAN, JJ., concur.