Opinion
401 KA 16–01833
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Deondra WALKER, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of robbery in the third degree ( Penal Law § 160.05 ). As defendant contends and the People correctly concede, the waiver of the right to appeal is invalid (see People v. Jackson, 99 A.D.3d 1240, 1240–1241, 951 N.Y.S.2d 449 [4th Dept. 2012], lv denied 20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622 [2012] ). During the plea colloquy, County Court "conflated the appeal waiver with the rights automatically waived by the guilty plea" ( People v. Martin, 88 A.D.3d 473, 474, 931 N.Y.S.2d 7 [1st Dept. 2011], affd 19 N.Y.3d 914, 950 N.Y.S.2d 84, 973 N.E.2d 179 [2012] ; see People v. Hawkins, 94 A.D.3d 1439, 1439–1440, 942 N.Y.S.2d 300 [4th Dept. 2012], lv denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012] ; People v. Tate, 83 A.D.3d 1467, 1467, 919 N.Y.S.2d 919 [4th Dept. 2011] ), and thus " ‘the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Sanborn, 107 A.D.3d 1457, 1458, 965 N.Y.S.2d 910 [4th Dept. 2013] ). We nevertheless conclude that the sentence is not unduly harsh or severe.