People v Carno

People v Carno 2012 NY Slip Op 08937 Released on December 21, 2012 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on December 21, 2012
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
1303 KA 09-01821

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

NICHOLAS CARNO, DEFENDANT-APPELLANT.


Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), rendered August 4, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C. AZZARELLI OF COUNSEL), FOR RESPONDENT.


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 ofcriminal possession of a forged instrument in the second degree (Penal Law § 170.25), defendant contends that the waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. We agree with defendant that the waiver of the right to appeal is invalid. Although the record establishes that defendant executed a written waiver of the right to appeal, there was no colloquy between County Court and defendant regarding the waiver of the right to appeal to ensure that it was knowingly, voluntarily and intelligently entered (see People v Cooper, 85 AD3d 1594, 1594, affd 19 NY3d 501). We nevertheless conclude that the sentence is not unduly harsh or severe.
Entered: December 21, 2012
Frances E. Cafarell
Clerk of the Court