| People v Ritter |
| 2015 NY Slip Op 00655 [124 AD3d 1133] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Ritter, Appellant. |
Donna Maria Lasher, Youngsville, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered July 23, 2012, convicting defendant upon his plea of guilty of thecrimes of aggravated driving while intoxicated and aggravated unlicensed operation of amotor vehicle.
Defendant pleaded guilty to aggravated driving while intoxicated and aggravatedunlicensed operation of a motor vehicle in satisfaction of a five-count indictmentcharging related crimes. Defendant also signed a written waiver of his right to appeal.Following the denial of his motion to withdraw the plea, he was sentenced, in accordancewith the plea agreement, to concurrent prison sentences of 1
We affirm. Initially, we note that defendant's waiver of the right to appeal was notknowingly, intelligently and voluntarily made. During the plea colloquy, County Courtdid not adequately explain the nature of the rights that defendant was purportedlywaiving, including that fact that the right was separate and distinct from the rightsautomatically forfeited upon a plea of guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; cf. People v Lopez, 97 AD3d853, 853 [2012], lv denied 19 NY3d 1027 [2012]). Rather, the court'sdescription of the waiver was ambiguous and confusing and, although defendant signed adetailed, written waiver of the right to appeal, the court did not orally confirm thatdefendant understood that he was foregoing his right to appeal (see People vBradshaw, 18 NY3d at 265, 267; cf. People v Ramos, 7 NY3d 737, [*2]738 [2006]). Thus, we agree with defendant that his appealwaiver was invalid (see Peoplev Burgette, 118 AD3d 1034, 1035 [2014]).
Turning to the merits, defendant's pro se assertion that County Court erroneouslyimposed consecutive sentences upon him is unsupported by the record (cf. People v Borush, 39 AD3d890, 890 [2007]). The court expressly indicated that the sentences were concurrent.Moreover, there is no merit to defendant's argument that his sentence was unlawfulbecause County Court imposed a minimum term that was less than one third of themaximum on his conviction of aggravated driving while intoxicated, a class D felony(see Vehicle and Traffic Law §§ 1192 [2-a] [a]; 1193 [1] [c][iii]). Penal Law § 70.00 (3) (b) provides that, for a class D felony, theminimum period "shall be not less than one year nor more than one-third of themaximum term imposed" (emphasis added). Defendant has expressly withdrawn hisremaining contentions regarding the involuntariness of his plea and, thus, we do notconsider them.
McCarthy, Rose, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.