| People v Harris |
| 2016 NY Slip Op 01741 [137 AD3d 514] |
| March 10, 2016 |
| Appellate Division, First Department |
[*1]
|  The People of the State of New York,Respondent, v Tarsaun Harris, Appellant. |
Center for Appellate Litigation, New York (Robert S. Dean of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Ryan Mansell of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered February27, 2015, convicting defendant, upon his plea of guilty, of criminal possession of aweapon in the second degree, and sentencing him to a term of four years, to be followedby three years of post-release supervision, unanimously affirmed.
Defendant did not waive his right to appeal from the judgment because the Courtnever advised defendant of the consequences of the appeal waiver, or spoke to defendantto ensure he understood the rights he was forfeiting by signing the waiver (see People v Oquendo, 105AD3d 447 [1st Dept 2013&rsqb, lv denied 21 NY3d 1007[2013&rsqb). Although defendant signed a written waiver, this "was nosubstitute for an on-the-record explanation of the nature of the right to appeal" (People v Ramos, 122 AD3d462, 464 [1st Dept 2014&rsqb). Furthermore, the written waiversays that defendant was "advised by the Court of the nature of the rights being waived,"but that never occurred. Rather, the court told defense counsel to explain the waiver ofappeal to defendant, and following an off-the-record conference between defendant andhis counsel, counsel indicated defendant had signed the waiver. Counsel's confirmationthat he told defendant about the waiver cannot substitute for the court conducting its owninquiry.
Defendant argues that the written waiver, which is a standard form, is invalidbecause it chills a defendant's right to file a notice of appeal and creates ethical dilemmasfor defense attorneys. The People counter by arguing that the waiver contains exceptionsallowing defendant to file a notice of appeal with respect to certain claims that are notwaivable. Because the waiver is not enforceable on other grounds, we need not decidethis issue.
Although defendant's claim is not waived, we decline to reduce his sentence.Defendant received six months more than the minimum sentence that he had beenoriginally promised because he did not timely appear on the sentencing date and was lateon the adjourned date. The court had warned defendant, when it let him remain at libertypending sentence, that it would give him additional jail time if he did not appear. Thecourt ultimately gave defendant less than the five years incarceration it told defendant hewould receive if he did not appear for sentencing. We do not find defendant's sentence tobe unduly harsh under the circumstances. Concur—Tom, J.P., Andrias,Moskowitz and Richter, JJ.