| People v Banks |
| 2015 NY Slip Op 00989 [125 AD3d 1276] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKevin Banks, Appellant. (Appeal No. 1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.),rendered July 26, 2011. The judgment revoked defendant's sentence of probation andimposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment revoking thesentence of probation upon his admission to violating a condition thereof and sentencinghim to a term of imprisonment for his conviction of criminal possession of a controlledsubstance in the fifth degree (Penal Law § 220.06 [5]). In appeal No. 2,defendant appeals from a judgment convicting him, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree (§ 220.16 [1]). Weagree with defendant that, in each appeal, the waiver of the right to appeal "does notencompass his challenge to the severity of the sentence because 'no mention was made onthe record during the course of the allocution concerning the waiver of defendant's rightto appeal' with respect to his conviction that he was also waiving his right to appeal anyissue concerning the severity of the sentence" (People v Peterson, 111 AD3d 1412, 1412 [2013]; see People v Maracle, 19NY3d 925, 928 [2012]).
We further agree with defendant that the written waiver of the right to appeal doesnot preclude him from challenging the sentence in each appeal. "A detailed writtenwaiver can supplement a court's on-the-record explanation of what a waiver of the rightto appeal entails, but a written waiver does not, standing alone, provide sufficientassurance that the defendant is knowingly, intelligently and voluntarily giving up his orher right to appeal" (People vPressley, 116 AD3d 794, 795 [2014], lv denied 23 NY3d 967 [2014][internal quotation marks omitted]). Here, although defendant signed such a writtenwaiver in each appeal, the record establishes that County Court did not sufficientlyexplain the significance of the appeal waiver or ascertain defendant's understandingthereof (see People vFrysinger, 111 AD3d 1397, 1398 [2013]; see also Pressley, 116 AD3d at795; see generally People vBradshaw, 18 NY3d 257, 267 [2011]). Nevertheless, we reject defendant'schallenge to the severity of the sentence in each appeal. Present—Smith, J.P.,Fahey, Carni, Valentino and Whalen, JJ.