| People v Nicholson |
| 2012 NY Slip Op 08554 [101 AD3d 904] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Nicholson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel ofcounsel; Gregory Musso on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered September 7, 2010, convicting him of attempted sexual abuse in the first degree andattempted assault in the second degree, upon his plea of guilty, and sentencing him toconsecutive determinate terms of four years of imprisonment on both convictions, and a term ofpostrelease supervision of five years.
Ordered that the judgment is modified, on the law, by providing that the terms ofimprisonment imposed upon the convictions shall run concurrently; as so modified, the judgmentis affirmed.
As the People correctly concede, the sentence imposed upon the defendant's conviction ofattempted assault in the second degree (attempted felony assault) must be modified to runconcurrently with the sentence imposed upon the conviction of attempted sexual abuse in the firstdegree (see Penal Law § 70.25 [2]; People v Parks, 95 NY2d 811, 814-815[2000]; People v Middleton, 32AD3d 557, 558 [2006]; People v Ahedo, 229 AD2d 588 [1996]).
As to the defendant's contention that his sentence was excessive, while a defendant who hasvalidly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction toobtain a reduced sentence (see People vLopez, 6 NY3d 248, 255 [2006]), the defendant correctly argues that his appeal waiverwas not valid. Although " 'a trial court need not engage in any particular litany' or catechism insatisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, atrial court 'must make certain that a defendant's understanding' of the waiver . . . 'isevident on the face of the record' " (People v Bradshaw, 18 NY3d 257, 265 [2011], quoting Peoplev Lopez, 6 NY3d at 256), and that "the record demonstrates that [the waiver] was madeknowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d at 256). Here, therecord does not demonstrate that the waiver was made knowingly, intelligently, and voluntarily,as the Supreme Court did nothing other than state on the record that the defendant had "beenexplained [sic] and he's executing waiver of appeal." Therefore, "notwithstanding the writtenappeal waiver form, it cannot be said that defendant knowingly, intelligently, and voluntarilywaived his right to appeal" (People [*2]v Bradshaw, 18NY3d at 267; see People v Callahan, 80 NY2d 273, 283 [1992]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]). Skelos, J.P., Dickerson, Hall and Roman, JJ., concur.