| People v Norton |
| 2012 NY Slip Op 04915 [96 AD3d 1651] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DarnellNorton, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered May 6, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree. The judgment was affirmed by order of this Court entered September 30, 2011(87 AD3d 1310 [2011]), and defendant on December 16, 2011 was granted leave to appeal to theCourt of Appeals from the order of this Court (18 NY3d 861), and the Court of Appeals on May8, 2012 reversed the order and remitted the case to this Court for clarification of the basis of thisCourt's decision (19 NY3d 842 [2012]).
Now, upon remittitur from the Court of Appeals,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: In a prior appeal (People v Norton, 87 AD3d 1310 [2011], revdsub nom., People v Gilliam 19 NY3d 842 [2012]), we summarily affirmed the judgmentconvicting defendant of robbery in the first degree (Penal Law § 160.15 [2]). Defendanthad contended that his sentence was unduly harsh and severe. In reversing our order, the Court ofAppeals concluded that this Court may not summarily affirm the judgment "without indicatingwhether [we] relied on the waiver [of the right to appeal] or determined that the sentencing claimlacked merit" (19 NY3d at 844). The Court remitted the matter to this Court "for clarification ofthe basis of [our] decision" (id.).
Upon remittal, we clarify that we previously reviewed the merits of defendant's contention,having determined that there was no valid waiver of the right to appeal, and we concluded thatthe sentence is not unduly harsh or severe. Although Supreme Court referred to a waiver of theright to appeal at the time of the plea, no oral waiver was elicited from defendant. In addition,neither the written waiver of the right to appeal in the record nor the court's brief mention of thatwaiver during the plea proceeding distinguished the waiver of the right to appeal from thoserights automatically forfeited upon a plea of guilty. Consequently, the record failed to "establishthat the defendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]). Present—Smith,J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.