| People v Moran |
| 2010 NY Slip Op 00312 [69 AD3d 1055] |
| January 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EdwardMoran, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May8, 2008, convicting defendant upon his plea of guilty of the crime of attempted burglary in thesecond degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging him with attempted burglary in the second degree. He pleaded guilty to this charge and,in accordance with the plea agreement, was sentenced as a persistent violent felony offender to12 years to life in prison. He now appeals.
Initially, we cannot agree with the People's assertion that defendant validly waived his rightto appeal. An appeal waiver was not recited up front as one of the plea terms, and the recorddoes not support the conclusion that defendant knowingly, intelligently and voluntarily waivedthat right (see People v Callahan, 80 NY2d 273, 280 [1992]). While defendant indicatedduring the plea colloquy that he knew that the plea bargain required an appeal waiver and hetook the opportunity to confer with counsel, the record does not reflect that the court explainedthis right or ascertained that defendant understood its meaning or had discussed it with counsel,or that he actually waived this right, orally or in writing (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Riddick, 40 AD3d 1259,1259-1260 [2007], lv denied 9 NY3d 925 [2007]; People v Phillips, 28 AD3d 939, 939 [2006], lv denied 7NY3d 761 [2006]).[*2]
Defendant's sole contention on appeal is that his sentenceis harsh and excessive. While defendant may raise this claim in the absence of an appeal waiverdespite the fact that it was an agreed-upon sentence (see People v Pollenz, 67 NY2d 264,268 [1986]), given that he received the minimum available sentence as a persistent violent felonyoffender (see Penal Law § 70.08 [2], [3] [c]) for this class D violent felony(see Penal Law § 70.02 [1] [b], [c]), his claim is meritless (see People v Williams, 35 AD3d971, 973 [2006], lv denied 8 NY3d 928 [2007]; see also CPL 470.20 [6]).
Cardona, P.J., Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed.