People v Gannaway (Nakeyta)

[*1] People v Gannaway (Nakeyta) 2015 NY Slip Op 50242(U) Decided on March 2, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570023/13

The People of the State of New York, Respondent,

against

Nakeyta Gannaway, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Robert A. Sackett, J), rendered September 12, 2012, convicting her, upon a plea of guilty, of identity theft in the third degree, and sentencing her to three years of probation.

Per Curiam.

Judgment of conviction (Robert A. Sackett, J), rendered September 12, 2012, affirmed.

Defendant's purported waiver of appeal during the plea colloquy was invalid because the court advised defendant that by pleading guilty she was "giving up [her] right to appeal ... any ... legal error that ... might have [been] made ... in this court," without making clear that the effect of the appeal waiver was to make the plea and sentence final and to foreclose review of the argument that she now seeks to advance on appeal, viz., that the negotiated sentence, though lawful, was excessive. Since nothing in the plea colloquy reflects that the court took adequate measures to ensure that defendant was not led "to believe that certain issues might survive a waiver when, in fact, they do not" (People v Brown, 122 AD3d 133, 142 [2014], lv denied ___ NY3d ___, Nov. 12, 2014]), we cannot say with confidence that defendant had "a full appreciation of the consequences of [the] waiver" (People v Bradshaw, 18 NY3d 257, 264 [2011]; see People v Oquendo, 105 AD3d 447, 447-448 [2013], lv denied 21 NY3d 1007 [2013]). Further, in the absence of any record indication that defendant was aware of the contents of the written appeal waiver that she previously signed, that waiver cannot cure the deficiency in the oral colloquy (see People v Bradshaw, 18 NY3d at 265; People v Loper, 115 AD3d 875, 878 [2014]).

Although we find that defendant's waiver of the right to appeal was invalid, we perceive no basis for reducing the probationary term imposed in accordance with the plea agreement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: March 02, 2015