People v Moyett

People v Moyett 2006 NY Slip Op 08643 [7 NY3d 892] November 21, 2006 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 24, 2007

[*1] The People of the State of New York, Respondent,
v
Wilfredo Moyett, Appellant.

Decided November 21, 2006

People v Moyett, 22 AD3d 114, reversed.

APPEARANCES OF COUNSEL

Center for Appellate Litigation, New York City (Robert S. Dean and Mark W. Zeno of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Leilani Rodriguez of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the excessive sentencing issue.

Defendant's purported waiver of appeal during the plea colloquy was invalid [*2]because the court advised defendant that "by pleading guilty you give up your right to appeal the conviction." Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea (see People v Billingslea, 6 NY3d 248, 257 [2006]). Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.