| People v Sanborn |
| 2013 NY Slip Op 04182 [107 AD3d 1457] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vJamison Sanborn, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered April 3, 2012. The judgment convicted defendant, upon his plea of guilty, ofrobbery in the first degree and menacing in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of, inter alia, robbery in the first degree (Penal Law § 160.15 [3]). We agreewith defendant that his waiver of the right to appeal is not valid (see People v Jackson, 99AD3d 1240, 1240-1241 [2012], lv denied 20 NY3d 987 [2012]). During theplea colloquy, County Court "conflated the appeal waiver with the rights automaticallywaived by the guilty plea" (People v Martin, 88 AD3d 473, 474 [2011], affd19 NY3d 914 [2012]; seePeople v Hawkins, 94 AD3d 1439, 1439-1440 [2012], lv denied 19NY3d 974 [2012]; People vTate, 83 AD3d 1467, 1467 [2011]), and thus "the record fails to establish thatdefendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (Jackson, 99 AD3d at 1241[internal quotation marks omitted]). Although defendant's contentions with respect to theseverity of the sentence therefore are not encompassed by the invalid waiver, wenevertheless conclude that the sentence is not unduly harsh or severe. In light of ourdetermination, we do not address defendant's remaining contentions with respect to hiswaiver of the right to appeal. Present—Scudder, P.J., Smith, Centra and Lindley,JJ.