| People v Brown |
| 2016 NY Slip Op 04586 [140 AD3d 1682] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid Brown, Appellant. (Appeal No. 1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.),rendered November 13, 2012. The judgment convicted defendant, upon his plea ofguilty, of burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of burglary in the third degree (Penal Law § 140.20)and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guiltyof burglary in the third degree (id.) under a separate indictment. It is undisputedthat, pursuant to the terms of the plea agreement for both convictions, defendant waspermitted to participate in the judicial diversion court and County Court would imposeconsecutive terms of imprisonment in the event that defendant did not successfullycomplete the drug treatment program. We agree with defendant's contention in bothappeals that the written waiver of the right to appeal that he signed as part of the"treatment court contract," approximately two weeks after he pleaded guilty, does notconstitute a valid waiver of the right to appeal. It is axiomatic that "[t]he record mustestablish that the defendant understood that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]) and, here, the plea record is silent with respect to the waiver of theright to appeal.
We nevertheless reject defendant's contention in each appeal that the sentenceimposed is unduly harsh and severe. Present—Whalen, P.J., Smith, Lindley,NeMoyer and Scudder, JJ.