Opinion
01-29-2015
The PEOPLE of the State of New York, Respondent, v. Michael RITTER, Appellant.
Donna Maria Lasher, Youngsville, for appellant, and appellant pro se. James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.
Donna Maria Lasher, Youngsville, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and CLARK, JJ.
Opinion
LAHTINEN, J.P.Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered July 23, 2012, convicting defendant upon his plea of guilty of the crimes of aggravated driving while intoxicated and aggravated unlicensed operation of a motor vehicle.
Defendant pleaded guilty to aggravated driving while intoxicated and aggravated unlicensed operation of a motor vehicle in satisfaction of a five-count indictment charging related crimes. Defendant also signed a written waiver of his right to appeal. Following the denial of his motion to withdraw the plea, he was sentenced, in accordance with the plea agreement, to concurrent prison sentences of 1 ½ to 6 years for the aggravated driving while intoxicated conviction and 1 to 3 years for the aggravated unlicensed operation conviction. Defendant now appeals.
We affirm. Initially, we note that defendant's waiver of the right to appeal was not knowingly, intelligently and voluntarily made. During the plea colloquy, County Court did not adequately explain the nature of the rights that defendant was purportedly waiving, including that fact that the right was separate and distinct from the rights automatically forfeited upon a plea of guilty (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; cf. People v. Lopez, 97 A.D.3d 853, 853, 948 N.Y.S.2d 174 [2012], lv. denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ). Rather, the court's description of the waiver was ambiguous and confusing and, although defendant signed a detailed, written waiver of the right to appeal, the court did not orally confirm that defendant understood that he was foregoing his right to appeal (see People v. Bradshaw, 18 N.Y.3d at 265, 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 [2006] ). Thus, we agree with defendant that his appeal waiver was invalid (see People v. Burgette, 118 A.D.3d 1034, 1035, 986 N.Y.S.2d 362 [2014] ).
Turning to the merits, defendant's pro se assertion that County Court erroneously imposed consecutive sentences upon him is unsupported by the record (cf. People v. Borush, 39 A.D.3d 890, 890, 834 N.Y.S.2d 340 [2007] ). The court expressly indicated that the sentences were concurrent. Moreover, there is no merit to defendant's argument that his sentence was unlawful because County Court imposed a minimum term that was less than one third of the maximum on his conviction of aggravated driving while intoxicated, a class D felony (see Vehicle and Traffic Law §§ 1192[2–a][a] ; 1193[1][c] [iii] ). Penal Law § 70.00(3)(b) provides that, for a class D felony, the minimum period “shall not be less than one year or more than one-third of the maximum term imposed” (emphasis added). Defendant has expressly withdrawn his remaining contentions regarding the involuntariness of his plea and, thus, we do not consider them.
ORDERED that the judgment is affirmed.
McCARTHY, ROSE, LYNCH and CLARK, JJ., concur.