| People v Pedro |
| 2015 NY Slip Op 09456 [134 AD3d 1396] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vVernon W. Pedro, Appellant. |
Michael G. Cianfarano, Oswego, for defendant-appellant.
Vernon W. Pedro, defendant-appellant pro se.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered September 6, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from the judgment convicting him upon his pleaof guilty of criminal possession of a controlled substance in the second degree (PenalLaw § 220.18 [1]). We agree with defendant that his waiver of the right toappeal was invalid because, based on County Court's statements at the time of the plea,"defendant may have erroneously believed that the right to appeal is automaticallyextinguished upon entry of a guilty plea" (People v Moyett, 7 NY3d 892, 893 [2006]). In the absenceof a written waiver of the right to appeal "or some indication in the record that defendantunderstood the distinction between the right to appeal and other trial rights forfeitedincident to a guilty plea, there is inadequate assurance that defendant entered into aknowing, intelligent and voluntary waiver" of the right to appeal (id.; cf. People v Braxton, 129AD3d 1674, 1675 [2015], lv denied 26 NY3d 965 [2015]).
Given the nature of the offense, we conclude that defendant's sentence is not undulyharsh or severe. Defendant failed to preserve for our review his contention in his pro sesupplemental brief concerning the presentence report (see People v Gibbons, 101AD3d 1615, 1616 [2012]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [3][c]). We have reviewed defendant's remaining contention in his pro se supplemental briefand conclude that it lacks merit.
Finally, we do not consider the additional issue raised by defendant in his main briefconcerning the plea allocution inasmuch as his attorney withdrew that contention (see People v Santoro, 132AD3d 1241, 1241 [2015]). Present—Scudder, P.J., Centra, Carni, Whalenand DeJoseph, JJ.