People v Diallo

People v Diallo 2021 NY Slip Op 04369 Decided on July 14, 2021 Appellate Division, Second 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 July 14, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
COLLEEN D. DUFFY
PAUL WOOTEN, JJ.
2018-02341
2018-02342

[*1]The People of the State of New York, respondent,

v

Boubacar Diallo, appellant. (Ind. Nos. 2769/17, 3843/17)

Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Keith Dolan of counsel; Jong Hwa Ryu on the memorandum), for respondent.

DECISION & ORDER

Appeals by the defendant, as limited by his motion, from two sentences of the Supreme Court, Kings County (Miriam Cyrulnik, J.), both imposed January 12, 2018, upon his pleas of guilty, on the ground that the sentences were excessive.

ORDERED that the sentences are affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, since the Supreme Court did not discuss the appeal waivers until after the defendant had already admitted his guilt as part of the plea agreement (see People v Adyl K., 187 AD3d 1208, 1209; People v Sutton, 184 AD3d 236, 245). Further, although the defendant executed written waivers of the right to appeal, the written waivers mischaracterized the rights encompassed by the appeal waivers (see People v Thomas, 34 NY3d 545, 564-566).

However, the sentences imposed were not excessive (see CPL 470.15[6][b]; People v Suitte, 90 AD2d 80).

MASTRO, J.P., CHAMBERS, MILLER, DUFFY and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court