Opinion
2012-05-8
The PEOPLE, etc., Respondent, v. Tyray GILLIAM, Appellant. The People, etc., Respondent, v. Alberto de Luna, Appellant. The People, etc., Respondent, v. Quintrell Joe, Appellant. The People, etc., Respondent, v. Darnell Norton, Appellant.
Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the first above-entitled action. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent in the first above-entitled action.
Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the first above-entitled action. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent in the first above-entitled action.
Center for Appellate Litigation, New York City (Lisa A. Packard and Robert S. Dean of counsel), for appellant in the second above-entitled action.
Cyrus R. Vance, Jr., District Attorney, New York City (Nicole A. Coviello of counsel), for respondent in the second above entitled action.
Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), for appellant in the third above-entitled action.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White and James P. Maxwell of counsel), for respondent in the third above-entitled action.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), for appellant in the fourth above-entitled action.
Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent in the fourth above-entitled action.
MEMORANDUM:
In each case, the order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in accordance with this memorandum.
In these unrelated cases, defendants pleaded guilty to a particular crime and waived the right to appeal. Each defendant subsequently challenged the validity of the waiver and asserted that the sentence was excessive. The Appellate Division summarily affirmed without indicating whether it relied on the waiver or determined that the sentencing claim lacked merit (86 A.D.3d 923, 926 N.Y.S.2d 838 [4th Dept. 2011], lv. granted 17 N.Y.3d 953, 936 N.Y.S.2d 79, 959 N.E.2d 1028 [2011],86 A.D.3d 433, 926 N.Y.S.2d 838 [1st Dept.2011], lv. granted17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011],87 A.D.3d 1266, 930 N.Y.S.2d 170 [4th Dept.2011], lv. granted18 N.Y.3d 859, 938 N.Y.S.2d 867, 962 N.E.2d 292 [2011],87 A.D.3d 1310, 930 N.Y.S.2d 170 [4th Dept.2011], lv. granted18 N.Y.3d 861, 938 N.Y.S.2d 868, 962 N.E.2d 293 [2011] ). This was impermissible under People v. Qoshja, 17 N.Y.3d 910, 911, 934 N.Y.S.2d 367, 958 N.E.2d 545 (2011). Consequently, we reverse and remit each case to the Appellate Division for clarification of the basis of its decision. Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
In People v. de Luna: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.
In People v. Gilliam, People v. Joe and People v. Norton: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.