| People v Acosta |
| 2015 NY Slip Op 08362 [133 AD3d 506] |
| November 17, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v William Acosta, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Larry Stephen, J.), rendered July 10,2014, convicting defendant, upon his plea of guilty, of aggravated family offense andassault in the third degree, and sentencing him, as a second felony offender, to a term of2 to 4 years and time served, respectively, unanimously modified, on the law, to theextent of remanding for resentencing, and further modified, as a matter of discretion inthe interest of justice, to the extent of remanding for a new determination of the durationof the orders of protection, and otherwise affirmed.
At sentencing, defense counsel represented to the court that he had just been retainedand received his client's file the day before. As a result, he asked for an adjournment ofapproximately 19 days, which would be after defendant's court date in a relatedmisdemeanor case and would also allow him to prepare a sentencing memorandum forthe court. Without commenting on defense counsel's request, the court proceeded withsentencing forthwith, which involved an enhanced sentence for violating a pleaagreement. Under these circumstances, the court abused its discretion and implicateddefendant's right to effective assistance of counsel by denying defense counsel's requestfor an adjournment of sentencing (see People v Foy, 32 NY2d 473, 477 [1973];People v Jones, 15 AD3d208, 209 [1st Dept 2005]).
The record fails to reflect that defendant's waiver of his right to appeal was knowing,intelligent, and voluntary. Notwithstanding the exemplary written form clarifying thatthis waiver was distinct from other waivers and does not automatically result from aguilty plea, the court's colloquy with defendant, who merely confirmed his understandingthat the waiver of the right to appeal was "separate" from his other waivers, failed toestablish that defendant had actually signed the written form and was aware of itscontents (see People vElmer, 19 NY3d 501, 510 [2012]; People v Oquendo, 105 AD3d 447, 448 [1st Dept 2013],lv denied 21 NY3d 1007 [2013]). Nevertheless, in light of the fact that we areremanding for resentencing, we take no position as to whether the sentence wasexcessive.
As the People concede, the court failed to pronounce the sentence imposed on theassault conviction, as required by CPL 380.20, and failed to take jail time credit intoaccount in calculating the expiration date of the orders of protection, which were basedon the maximum expiration date of the sentence imposed on the aggravated familyoffense conviction (see CPL 530.12 [5] [A] [ii]). Concur—Tom, J.P.,Andrias, Moskowitz and Kapnick, JJ.