Opinion
631 KA 16-01367
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Luis GONZALEZ, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: We previously held this case, reserved decision, and remitted the matter to County Court to make and state for the record a determination of whether defendant is a youthful offender ( People v. Gonzalez , 171 A.D.3d 1502, 1503, 99 N.Y.S.3d 546 [4th Dept. 2019] ; see generally People v. Middlebrooks , 25 N.Y.3d 516, 525-527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ). On remittal, the court denied defendant youthful offender treatment. Specifically, the court found no mitigating circumstances that bore directly on the manner in which the crime was committed and, therefore, defendant was not an eligible youth upon his conviction of assault in the first degree ( Penal Law § 120.10 [1] ), an offense in which he was the sole participant (see CPL 720.10 [2] [a] [ii] ; [3]; People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ). The court did not thereby abuse its discretion (see People v. Agee , 140 A.D.3d 1704, 1704, 34 N.Y.S.3d 554 [4th Dept. 2016], lv denied 28 N.Y.3d 925, 40 N.Y.S.3d 354, 63 N.E.3d 74 [2016] ).
We agree with defendant that his waiver of the right to appeal is invalid inasmuch as there is no indication that the court obtained a knowing and voluntary waiver of that right at the time defendant entered the plea (see People v. Carroll , 148 A.D.3d 1546, 1546-1547, 49 N.Y.S.3d 808 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ). Here, the oral colloquy with respect to the purported waiver occurred at sentencing (see People v. Brown , 148 A.D.3d 1562, 1562-1563, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Sims , 129 A.D.3d 1509, 1510, 12 N.Y.S.3d 682 [4th Dept. 2015], lv denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ) and, although the written waiver bears the same date as the plea proceeding, the court did not obtain from defendant an acknowledgment that he had signed it or that he was aware of and understood its contents (see People v. McIlwain , 158 A.D.3d 1177, 1177-1178, 69 N.Y.S.3d 452 [4th Dept. 2018] ; People v. Hibbard , 148 A.D.3d 1538, 1539, 51 N.Y.S.3d 720 [4th Dept. 2017] ). Moreover, we note that the written waiver is inadequate inasmuch as it did not distinguish the right to appeal from the other rights given up when pleading guilty (see People v. Norton , 96 A.D.3d 1651, 1652, 946 N.Y.S.2d 812 [4th Dept. 2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ).
Nevertheless, the sentence is not unduly harsh or severe.