People v Blackwell

People v Blackwell 2017 NY Slip Op 04663 Decided on June 9, 2017 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.

Decided on June 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
702 KA 15-00080

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

v

JAMES L. BLACKWELL, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), rendered September 24, 2014. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the third degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35 [1]). We agree with defendant that the waiver of the right to appeal is not valid. In order for this Court to uphold a waiver of the right to appeal, "[t]he record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty—the right to remain silent, the right to confront one's accusers and the right to a jury trial, for example" (People v Lopez, 6 NY3d 248, 256). Such a waiver is ineffective where as here, defendant, notwithstanding a written waiver, "never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d 257, 267; cf. People v Ramos, 7 NY3d 737, 738; People v Gibson, 147 AD3d 1507, 1507). Nevertheless, we conclude that the sentence is not unduly harsh or severe.

Entered: June 9, 2017

Frances E. Cafarell

Clerk of the Court