People v. Cobian

186 A.D.3d 851

127 N.Y.S.3d 329 (Mem)

The PEOPLE, etc., Respondent,

v.Adam COBIAN, Appellant.

2018–14429

Ind. No. 930/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 19, 2020

August 26, 2020

Laurette D. Mulry, Riverhead, N.Y. (Felice Milani of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Sharyn Gitter of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (John B. Collins, J.), rendered October 27, 2017, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

We agree with the defendant that he did not validly waive the right to appeal (see People v. Thomas , 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw , 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The County Court failed to sufficiently explain the nature of the right to appeal and the consequences of waiving that right (see People v. Parrish , 179 A.D.3d 841, 113 N.Y.S.3d 900 ; People v. Solomon , 178 A.D.3d 966, 112 N.Y.S.3d 519 ; People v. Himonitis , 174 A.D.3d 738, 102 N.Y.S.3d 445 ). The fact that the defendant executed a written waiver of the right to appeal is not a complete substitute for an on-the-record explanation of the nature of the right to appeal (see People v. Parrish , 179 A.D.3d at 841–842, 113 N.Y.S.3d 900 ; People v. Brown , 122 A.D.3d 133, 139, 992 N.Y.S.2d 297 ). Thus, appellate review of his contention that the sentence imposed was excessive is not precluded by the purported waiver. However, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur.