Opinion
204 KA 19-00817
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Darnell WALLACE, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the second degree ( Penal Law § 125.15 [1] ) and six counts of criminal sale of a controlled substance in the third degree (§ 220.39 [1]). We agree with defendant that the waiver of the right to appeal is invalid. A waiver of the right to appeal is not effective where, as here, it is not mentioned until sentencing, after defendant pleaded guilty (see People v. Weir , 174 A.D.3d 1465, 1466, 106 N.Y.S.3d 487 [4th Dept. 2019], lv denied 34 N.Y.3d 1020, 114 N.Y.S.3d 743, 138 N.E.3d 472 [2019] ; 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. Mason , 144 A.D.3d 1589, 1589, 40 N.Y.S.3d 694 [4th Dept. 2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ).
Defendant further contends that Supreme Court erred in failing to redact from the preplea investigation report statements that defendant made during the preplea investigation interview, because those statements were made without the presence of counsel. Contrary to the People's contention, defendant preserved the issue for our review by moving to redact the statements from the preplea investigation report (cf. People v. Steinbrecher , 169 A.D.3d 1462, 1463, 93 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 652, 130 N.E.3d 1262 [2019] ; People v. Tyo , 140 A.D.3d 1697, 1698, 31 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016] ; see generally People v. Griswold , 186 A.D.3d 1104, 1104, 127 N.Y.S.3d 374 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 520, 158 N.E.3d 537 [2020] ). The court stated that it was reserving decision, but there is no indication in the record that the court ever issued a decision. It is well settled that a court's failure to rule on a motion cannot be deemed a denial thereof (see People v. Desius , 178 A.D.3d 1422, 1422-1423, 112 N.Y.S.3d 656 [4th Dept. 2019], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 151, 167 N.E.3d 1286 [2021] ; People v. Mack , 122 A.D.3d 1444, 1445, 996 N.Y.S.2d 852 [4th Dept. 2014] ; see generally People v. Concepcion , 17 N.Y.3d 192, 197-198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine defendant's motion.