People v. Gilbert, 106 A.D.3d 1133 (N.Y. App. Div. 2013). · Go Syfert
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People v. Gilbert, 106 A.D.3d 1133 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
13 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Mazula (nyappdiv, 2018-03-08)
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) People v. Mazula
N.Y. App. Div. · 2018 · confidence medium
Therefore, this issue is unpreserved for our review ( see People v Gilbert , 106 AD3d 1133, 1133 [2013]; People v DePalma , 99 AD3d 1116 , 1117 [2012], lv denied 20 NY3d 1010 [2013]).
discussed Cited as authority (rule) People v. Bickford
N.Y. App. Div. · 2016 · confidence medium
Initially, we note that this challenge is not precluded by defendant’s waiver of the right to appeal as it does not appear from the record that he was advised of the separate and distinct nature of this right (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lemon, 137 AD3d 1422, 1423 [2016]; People v Gilbert, 106 AD3d 1133, 1133 [2013]).
discussed Cited as authority (rule) People v. March
N.Y. App. Div. · 2014 · confidence medium
Upon review of the record on appeal, we agree with defendant’s contention that his waiver of the right to appeal was not valid as the record does not reflect that he was adequately advised that the right to appeal is “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]; compare People v Mydosh, 117 AD3d 1195, 1196 [2014], lv denied 24 NY3d 963…
discussed Cited as authority (rule) BPeoplevMarch
N.Y. App. Div. · 2014 · confidence medium
Upon review of the record on appeal, we agree with defendant's contention that his waiver of the right to appeal was not valid as the record does not reflect that he was adequately advised that the right to appeal is "separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Pimintel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]; compare People v Mydosh, 117 AD3d 1195, 1196 [2014], lv denied 24 NY3d 963 [201…
discussed Cited as authority (rule) People v. March
N.Y. App. Div. · 2014 · confidence medium
Upon review of the record on appeal, we agree with defendant’s contention that his waiver of the right to appeal was not valid as the record does not reflect that he was adequately advised that the right to appeal is “separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]; compare People v Mydosh, 117 AD3d 1195, 1196 [2014], lv denied 24 NY3d 963…
cited Cited as authority (rule) People v. Wachtel
N.Y. App. Div. · 2014 · confidence medium
As such, he failed to preserve the issue for our review (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v DePalma, 99 AD3d 1116 , 1117 [2012], lv denied 20 NY3d 1010 [2013]).
discussed Cited as authority (rule) People v. Whitted
N.Y. App. Div. · 2014 · confidence medium
As a preliminary matter, we agree with defendant that his appeal waiver is invalid, as the record does not reflect that he was advised that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty or that he understood the rights he was waiving (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Bressard, 112 AD3d 988 , 989 [2013], lv denied 22 NY3d 1137 [2014]; People v Bouton, 107 AD3d 1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]).
discussed Cited as authority (rule) People v. Whitted
N.Y. App. Div. · 2014 · confidence medium
As a preliminary matter, we agree with defendant that his appeal waiver is invalid, as the record does not reflect that he was advised that the right to appeal was separate and distinct from the other rights that he was forfeiting by pleading guilty or that he understood the rights he was waiving (see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Bressard, 112 AD3d 988 , 989 [2013], lv denied 22 NY3d 1137 [2014]; People v Bouton, 107 AD3d 1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]; People v Gilbert, 106 AD3d 1133, 1133 [2013]).
cited Cited as authority (rule) People v. Wachtel
N.Y. App. Div. · 2014 · confidence medium
As such, he failed to preserve the issue for our review (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v DePalma, 99 AD3d 1116 , 1117 [2012], lv denied 20 NY3d 1010 [2013]).
discussed Cited as authority (rule) People v. O'Neill
N.Y. App. Div. · 2014 · confidence medium
Initially, we agree with defendant that his waiver of the right to appeal his conviction and sentence was invalid due to the lack of specificity contained within the document entitled “waiver of appeal” and County Court’s corresponding failure to apprise defendant of the separate and distinct nature of the right that he was forfeiting (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v Ladieu, 105 AD3d 1265, 1265 [2013], lv denied 21 NY3d 1017 [2013]).
discussed Cited as authority (rule) People v. O'Neill
N.Y. App. Div. · 2014 · confidence medium
Initially, we agree with defendant that his waiver of the right to appeal his conviction and sentence was invalid due to the lack of specificity contained within the document entitled “waiver of appeal” and County Court’s corresponding failure to apprise defendant of the separate and distinct nature of the right that he was forfeiting (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v Ladieu, 105 AD3d 1265, 1265 [2013], lv denied 21 NY3d 1017 [2013]).
discussed Cited as authority (rule) People v. Henion
N.Y. App. Div. · 2013 · confidence medium
Likewise, defendant’s contention that he should have been allowed the opportunity to withdraw his plea prior to the imposition of an enhanced sentence has not been preserved by his failure to object to the enhanced sentence or move to withdraw his plea (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v DePalma, 99 AD3d 1116 , 1116-1117 [2012], lv denied 20 NY3d 1010 [2013]).
discussed Cited as authority (rule) People v. Henion
N.Y. App. Div. · 2013 · confidence medium
Likewise, defendant’s contention that he should have been allowed the opportunity to withdraw his plea prior to the imposition of an enhanced sentence has not been preserved by his failure to object to the enhanced sentence or move to withdraw his plea (see People v Gilbert, 106 AD3d 1133, 1133 [2013]; People v DePalma, 99 AD3d 1116 , 1116-1117 [2012], lv denied 20 NY3d 1010 [2013]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Sheldon W. Gilbert
Appellate Division of the Supreme Court of the State of New York.
May 2, 2013.
106 A.D.3d 1133
McCarthy.
Cited by 13 opinions  |  Published
McCarthy, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 18, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of two pending indictments and other charges, defendant pleaded guilty to one count of burglary in the second degree and waived his right to appeal. In exchange, County Court agreed to sentence him to interim probation and reduce his conviction to attempted burglary in the second degree and place him on probation, if he successfully completed a drug treatment program; if unsuccessful in treatment, the court would impose a prison term for the burglary conviction. Prior to sentencing, defendant was terminated from several treatment programs. County Court sentenced him to six years in prison, followed by five years of postrelease supervision. Defendant appeals.

Initially, the waiver of appeal “was invalid inasmuch as the record does not disclose that defendant understood that this right was separate and distinct from the other rights he forfeited by pleading guilty” (People v Secore, 102 AD3d 1059, 1060 [2013]; see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Cianfarani, 81 AD3d 998, 999 [2011]). Regardless of the invalidity of the waiver, as defendant abandoned his objection during sentencing and never moved to withdraw his plea or vacate the judgment of conviction, he did not preserve his argument concerning the enhancement of his sentence (see People v DePalma, 99 AD3d 1116, 1117 [2012], lv denied 20 NY3d 1010 [2013]; People v Haynes, 14 AD3d 789, 790-791 [2005], lv denied [*1134] 4 NY3d 831 [2005]; compare People v Davis, 72 AD3d 1292, 1293 [2010]). Considering defendant’s multiple crimes, as well as his inability to follow the rules to successfully complete treatment, County Court did not abuse its discretion in imposing sentence and no extraordinary circumstances exist to warrant disturbing the sentence (see People v Bean, 102 AD3d 1062, 1063 [2013]; People v Brown, 96 AD3d 1236, 1237 [2012]).

Mercure, J.E, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.