Opinion
2012-06-15
The PEOPLE of the State of New York, Respondent, v. Darnell NORTON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
In a prior appeal ( People v. Norton, 87 A.D.3d 1310, 930 N.Y.S.2d 170,revd.19 N.Y.3d 842, 946 N.Y.S.2d 98, 969 N.E.2d 215), we summarily affirmed the judgment convicting defendant of robbery in the first degree (Penal Law § 160.15[2] ). Defendant had contended that his sentence was unduly harsh and severe. In reversing our order, the Court of Appeals concluded that this Court may not summarily affirm the judgment “without indicating whether [we] relied on the waiver [of the right to appeal] or determined that the sentencing claim lacked merit” ( Norton, 19 N.Y.3d at 843, 946 N.Y.S.2d 98, 969 N.E.2d 215). The Court remitted the matter to this Court “for clarification of the basis of [our] decision” ( id. at 843, 946 N.Y.S.2d 98, 969 N.E.2d 215).
Upon remittal, we clarify that we previously reviewed the merits of defendant's contention, having determined that there was no valid waiver of the right to appeal, and we concluded that the sentence is not unduly harsh or severe. Although Supreme Court referred to a waiver of the right to appeal at the time of the plea, no oral waiver was elicited from defendant. In addition, neither the written waiver of the right to appeal in the record nor the court's brief mention of that waiver during the plea proceeding distinguished the waiver of the right to appeal from those rights automatically forfeited upon a plea of guilty. Consequently, the record failed to “establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.