CARROLL, DIONTE, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
91
KA 15-01824
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DIONTE CARROLL, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN GILSENAN, OF THE
PENNSYLVANIA AND MICHIGAN BARS, ADMITTED PRO HAC VICE, OF COUNSEL),
FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered February 27, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and criminal possession of a controlled substance
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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]). We agree
with defendant that the waiver of the right to appeal is invalid
because “ ‘the minimal inquiry made by County Court was insufficient
to establish that the court engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice’ ” (People v Jones, 107 AD3d 1589, 1589,
lv denied 21 NY3d 1075). Contrary to the People’s contention, the
written waiver of the right to appeal, which was not signed until
sentencing, does not serve to validate the otherwise inadequate oral
waiver where, as here, “there is no indication that [the court]
obtained a knowing and voluntary waiver of that right at the time of
the plea” (People v Sims, 129 AD3d 1509, 1510, lv denied 26 NY3d 935;
see People v Lawson [appeal No. 7], 124 AD3d 1249, 1250). We
nevertheless conclude that the sentence is not unduly harsh or severe.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court