No. SSM 30.
Decided November 21, 2006.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 11, 2005. The Appellate Division affirmed a judgment of the Supreme Court, Bronx County (Roger S. Hayes, J.), which had convicted defendant, upon a plea of guilty, of robbery in the first degree, and sentenced him, as a second felony offender, to a term of imprisonment of 10 years.
People v. Moyett, 22 AD3d 114, reversed.
Center for Appellate Litigation, New York City ( Robert S. Dean and Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Leilani Rodriguez of counsel), for respondent.
Before: Chief Judge KAYEand Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT.
OPINION OF THE COURT
The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the excessive sentencing issue.
Defendant's purported waiver of appeal during the plea colloquy was invalid because the court advised defendant that "by pleading guilty you give up your right to appeal the conviction." Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea ( see People v. Billingslea, 6 NY3d 248, 257). Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.