Opinion
11-16-2017
The PEOPLE of the State of New York, Respondent, v. Pedro MORALES, Defendant–Appellant.
Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nancy D. Killan of counsel), for respondent.
Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nancy D. Killan of counsel), for respondent.
Appeal from judgment, Supreme Court, Bronx County (Margaret
L. Clancy, J.), rendered April 5, 2016, convicting defendant, upon his plea of guilty, of course of sexual conduct against a child, and sentencing him to a term of 13 years, held in abeyance, the application by assigned counsel to withdraw on the ground that there are no non-frivolous issues to be raised on appeal ( People v. Saunders, 52 A.D.2d 833, 384 N.Y.S.2d 161 [1st Dept.1976] ), is denied, and the time to perfect the appeal is enlarged to the March 2018 Term of this Court.
Counsel states that defendant validly waived his right to appeal, thus foreclosing any challenge to the length of the sentence imposed. However, a nonfrivolous argument could be made that the written waiver of appeal signed by defendant is invalid (see People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept.2016], lv. denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ; People v. Santiago, 119 A.D.3d 484, 990 N.Y.S.2d 494 [1st Dept.2014], lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ). We note that the written waiver in this case contains different language than those waivers found invalid in Powell and Santiago, and the court here conducted a thorough oral colloquy. This issue requires briefing. Absent a valid waiver of the right to appeal, an excessive sentence issue survives.
RICHTER, J.P., MANZANET–DANIELS, ANDRIAS, KERN, SINGH, JJ., concur.