PEDRO, VERNON W., PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1162
KA 14-00507
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
VERNON W. PEDRO, DEFENDANT-APPELLANT.
MICHAEL G. CIANFARANO, OSWEGO, FOR DEFENDANT-APPELLANT.
VERNON W. PEDRO, DEFENDANT-APPELLANT PRO SE.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered September 6, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from the judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the second degree (Penal Law § 220.18 [1]). We agree
with defendant that his waiver of the right to appeal was invalid
because, based on County Court’s statements at the time of the plea,
“defendant may have erroneously believed that the right to appeal is
automatically extinguished upon entry of a guilty plea” (People v
Moyett, 7 NY3d 892, 893). In the absence of a written waiver of the
right to 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 the right to appeal (id.; cf. People v Braxton,
129 AD3d 1674, 1675, lv denied 26 NY3d 965).
Given the nature of the offense, we conclude that defendant’s
sentence is not unduly harsh or severe. Defendant failed to preserve
for our review his contention in his pro se supplemental brief
concerning the presentence report (see People v Gibbons, 101 AD3d
1615, 1616), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]). We have reviewed defendant’s remaining
contention in his pro se supplemental brief and conclude that it lacks
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KA 14-00507
merit.
Finally, we do not consider the additional issue raised by
defendant in his main brief concerning the plea allocution inasmuch as
his attorney withdrew that contention (see People v Santoro, 132 AD3d
1241, 1241).
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court