Opinion
No. 1022 KA 18-00718
02-03-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEITH ROBBINS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, MONTOUR, AND OGDEN, JJ.
Appeal from a judgment of the Chautauqua County Court (David W. Foley, J.), rendered December 18, 2017. The judgment convicted defendant upon a plea of guilty of manslaughter in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [2]), defendant contends that his waiver of the right to appeal is invalid and thus does not foreclose his challenge to the severity of the negotiated sentence. We agree. Here, "there is no basis [in the record] upon which to conclude that [County Court] ensured '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 Jones, 107 A.D.3d 1589, 1590 [4th Dept 2013], lv denied 21 N.Y.3d 1075 [2013], quoting People v Lopez, 6 N.Y.3d 248, 256 [2006]; see People v Barzee, 204 A.D.3d 1422, 1422 [4th Dept 2022], lv denied 38 N.Y.3d 1132 [2022]). We nevertheless conclude that the sentence is not unduly harsh or severe.