allocution concerning waiver in New York

2020Finally, we agree with defendant that, as the People correctly concede, his waiver of the right to appeal does not encompass his challenge to the severity of the sentence inasmuch as "no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence" ( People v Tomeno , 141 AD3d 1120, 1120 [4th Dept 2016], lv denied 28 NY3d 974 [2016] [internal quotation marks omitted]; see People v Maracle , 19 NY3d 925, 928 [2012]).

2019We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence because "[n]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence" ( People v Morgan , 149 AD3d 1560, 1560 [4th Dept 2017], lv denied 29 NY3d 1083 [2017] [internal quotation marks omitted]; see generally People v Maracle , 19 NY3d 925, 927-928 [2012]).

2017We agree with defendant that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the [severity] of his sentence” (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]).

2017We agree with defendant that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence. "[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the [severity] of his sentence" ( People v Pimentel , 108 AD3d 861, 862 , lv denied 21 NY3d 1076 ; see People v Maracle , 19 NY3d 925, 928 ).

2019We agree with defendant that her "waiver of the right to appeal does not encompass [her] challenge to the severity of the sentence because no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal' with respect to [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v Peterson , 111 AD3d 1412, 1412 [4th Dept 2013]; see People v Grucza , 145 AD3d 1505, 1506 [4th Dept 2016]; see generally People v Maracle , 19 NY3d 925, 928 [2012]).

2016We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see People v Maracle, 19 NY3d 925, 928 [2012]; People v Peterson, 111 AD3d 1412, 1412 [2013]).

2019We agree with defendant that her waiver of the right to appeal does not encompass her challenge to the severity of the sentence . "[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v Testerman , 149 AD3d 1559 , 1559 [4th Dept 2017] [internal quotation marks omitted]; see People v Lorenz , 119 AD3d 1450, 1450 [4th Dept 2014], lv denied 24 NY3d 962 [2014]).

2018Even assuming, arguendo, that defendant's oral waiver of the right to appeal was knowing, intelligent and voluntary, we conclude, and the People correctly concede, that the oral waiver does not encompass his challenge to the severity of the sentence because " no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction' that he was also waiving his right to appeal any issue concerning the severity of the sentence" ( People v Lorenz , 119 AD3d 1450 , 1450 [4th Dept 2014], lv denied 24 NY3d 962 [2014]; see People v Kear

2019Although defendant executed a written waiver of the right to appeal in which she specifically waived her right to appeal "all aspects of [her] case, including the severity of the sentence," we conclude that the written waiver does not preclude our review of the severity of the sentence inasmuch as County Court "did not inquire of defendant whether [she] understood the written waiver or whether [she] had even read the waiver before signing it" ( People v Bradshaw , 18 NY3d 257, 262 [2011]; see Grucza , 145 AD3d at 1506 ; People v Saeli , 136 AD3d 1290, 1291 [4th Dept 2016]).

2017Second, “ ‘[although the record establishes that defendant executed a written waiver of the right to appeal, there was no colloquy between [Supreme] Court and defendant regarding the waiver of the right to appeal to ensure that’ defendant was aware that it encompassed his challenge to the severity of the sentence” (People v Avellino, 119 AD3d 1449 , 1449-1450 [2014]; see generally People v Bradshaw, 18 NY3d 257, 264-266 [2011]).

2019We agree with defendant that her "waiver of the right to appeal does not encompass [her] challenge to the severity of the sentence because no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal' with respect to [her] conviction that [she] was also waiving [her] right to appeal any issue concerning the severity of the sentence" ( People v Peterson , 111 AD3d 1412, 1412 [4th Dept 2013]; see People v Grucza , 145 AD3d 1505, 1506 [4th Dept 2016]; see generally People v Maracle , 19 NY3d 925, 928 [2012]).

2018We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. " [N]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence' " ( People v Grucza , 145 AD3d 1505, 1506 [4th Dept 2016]; see People v Maracle , 19 NY3d 925, 928 [2012]).

2015Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal [her] conviction that [she] was also waiving [her] right to appeal the harshness of [her] sentence” (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]

2015Although the record establishes that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), we conclude that the valid waiver of the right to appeal does not encompass the challenge to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal [her] conviction that [she] was also waiving [her] right to appeal the harshness of [her] sentence” (People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]

2020Finally, we agree with defendant that, as the People correctly concede, his waiver of the right to appeal does not encompass his challenge to the severity of the sentence inasmuch as "no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence" ( People v Tomeno , 141 AD3d 1120, 1120 [4th Dept 2016], lv denied 28 NY3d 974 [2016] [internal quotation marks omitted]; see People v Maracle , 19 NY3d 925, 928 [2012]).

2018As the People correctly concede, defendant's waiver of the right to appeal does not encompass his challenge to the severity of the sentence because "no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal any issue concerning the harshness of his sentence" ( People v Tomeno , 141 AD3d 1120, 1120-1121 [4th Dept 2016], lv denied 28 NY3d 974 [2016] [internal quotation marks omitted]; see People v Maracle, 19 NY3d 925, 928 [2012]).

2016We agree with defendant’s contention in his main and pro se supplemental briefs that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Gibson, 134 AD3d 1517 , 1518 [2015], lv denied 27 NY3d 10

2016We agree with defendant’s contention in his main and pro se supplemental briefs that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence. “[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Gibson, 134 AD3d 1517 , 1518 [2015], lv denied 27 NY3d 10

2015Initially, we note that “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” and the determination to deny him youthful offender status (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Anderson, 90 AD3d 1475, 1476 [2011], lv denied 18 NY3d 991 [2012]).

2015Initially, we note that “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” and the determination to deny him youthful offender status (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Anderson, 90 AD3d 1475, 1476 [2011], lv denied 18 NY3d 991 [2012]).

2015Initially, we note that “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” and the determination to deny him youthful offender status (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Anderson, 90 AD3d 1475, 1476 [2011], lv denied 18 NY3d 991 [2012]).

2015Initially, we note that “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence” and the determination to deny him youthful offender status (People v Pimentel, 108 AD3d 861 , 862 [2013], lv denied 21 NY3d 1076 [2013], citing People v Maracle, 19 NY3d 925, 928 [2012]; see People v Anderson, 90 AD3d 1475, 1476 [2011], lv denied 18 NY3d 991 [2012]).

2015Furthermore, although the written waiver of the right to appeal specifically encompassed any challenge to the sentence, the written waiver does not foreclose our review of the severity of the sentence because “[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it” (People v Bradshaw, 18 NY3d 257, 262 [2011]; see People v Elmer, 19 NY3d 501, 510 [2012]).

2015Furthermore, although the written waiver of the right to appeal specifically encompassed any challenge to the sentence, the written waiver does not foreclose our review of the severity of the sentence because “[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it” (People v Bradshaw, 18 NY3d 257, 262 [2011]; see People v Elmer, 19 NY3d 501, 510 [2012]).

2015Although defendant’s waiver of his right to appeal does not encompass his challenge to the severity of the sentence “inasmuch as [County] Court did not explain during the course of the allocution concerning the waiver of the right to appeal that he was waiving the right to appeal any issue regarding the severity of the sentence” (People v Donaldson, 130 AD3d 1486, 1486 [2015]), we nevertheless perceive no basis in the record to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).

2015Although defendant’s waiver of his right to appeal does not encompass his challenge to the severity of the sentence “inasmuch as [County] Court did not explain during the course of the allocution concerning the waiver of the right to appeal that he was waiving the right to appeal any issue regarding the severity of the sentence” (People v Donaldson, 130 AD3d 1486, 1486 [2015]), we nevertheless perceive no basis in the record to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).

2016Finally, while we agree that defendant’s waiver of his right to appeal does not encompass his challenge to the severity of his sentence inasmuch as “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Ayala, 117 AD3d 1447, 1448 [2014], lv denied 23 NY3d 1033 [2014] [internal quotation marks omitted]), we nevertheless conclude that defendant’s sentence is not unduly harsh or severe.

2016Finally, while we agree that defendant’s waiver of his right to appeal does not encompass his challenge to the severity of his sentence inasmuch as “no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Ayala, 117 AD3d 1447, 1448 [2014], lv denied 23 NY3d 1033 [2014] [internal quotation marks omitted]), we nevertheless conclude that defendant’s sentence is not unduly harsh or severe.

2014Nor is the deficiency in the allocution cured by defendant’s written waiver of the right to appeal (see People v Ramos-Roman, 112 AD3d 1364, 1364 [2013]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see generally Maracle, 19 NY3d at 927-928 ).

2014Nor is the deficiency in the allocution cured by defendant’s written waiver of the right to appeal (see People v Ramos-Roman, 112 AD3d 1364, 1364 [2013]; People v Pimentel, 108 AD3d 861, 862 [2013], lv denied 21 NY3d 1076 [2013]; see generally Maracle, 19 NY3d at 927-928 ).

2014Finally, we agree with defendant that “the waiver of the right to appeal does not encompass his challenge to the severity of the sentence because ‘no mention was made on the record during the course of the allocution concerning the waiver of defend ant’s right to appeal’ with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412 [2013]; see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Milon, 114 AD3d 1130, 1131 [2014]).

2014Finally, we agree with defendant that “the waiver of the right to appeal does not encompass his challenge to the severity of the sentence because ‘no mention was made on the record during the course of the allocution concerning the waiver of defend ant’s right to appeal’ with respect to his conviction that he was also waiving his right to appeal any issue concerning the severity of the sentence” (People v Peterson, 111 AD3d 1412, 1412 [2013]; see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Milon, 114 AD3d 1130, 1131 [2014]).

2019Although defendant executed a written waiver of the right to appeal in which she specifically waived her right to appeal "all aspects of [her] case, including the severity of the sentence," we conclude that the written waiver does not preclude our review of the severity of the sentence inasmuch as County Court "did not inquire of defendant whether [she] understood the written waiver or whether [she] had even read the waiver before signing it" ( People v Bradshaw , 18 NY3d 257, 262 [2011]; see Grucza , 145 AD3d at 1506 ; People v Saeli , 136 AD3d 1290, 1291 [4th Dept 2016]).

2016We agree with defendant that her waiver of the right to appeal does not encompass her challenge to the severity of her sentence. “ ‘[N]o mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal [her] conviction *1116 that [she] was also waving [her] right to appeal the harshness of [her] sentence’ ” (People v Saeli, 136 AD3d 1290, 1291 [2016]).

2013Nor do we find that the deficiencies in the allocution are cured by defendant’s written appeal waiver, inasmuch as that document erroneously sets forth the purported consideration for the waiver 3 with no attempt to correct the inaccurate information or otherwise detail the correct terms (compare People v Glynn, 73 AD3d 1290, 1290-1291 [2010]).

2013Nor do we find that the deficiencies in the allocution are cured by defendant’s written appeal waiver, inasmuch as that document erroneously sets forth the purported consideration for the waiver 3 with no attempt to correct the inaccurate information or otherwise detail the correct terms (compare People v Glynn, 73 AD3d 1290, 1290-1291 [2010]).

2019We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence because "[n]o mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal the harshness of his sentence" ( People v Morgan , 149 AD3d 1560, 1560 [4th Dept 2017], lv denied 29 NY3d 1083 [2017] [internal quotation marks omitted]; see generally People v Maracle , 19 NY3d 925, 927-928 [2012]).

2018Furthermore, as the People also correctly concede, although the record indicates that defendant signed a written waiver, the written waiver was invalid inasmuch as there was "not even an attempt by the court to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ( People v DeSimone , 80 NY2d 273, 283 [1992]).

2018Even assuming, arguendo, that defendant's oral waiver of the right to appeal was knowing, intelligent and voluntary, we conclude, and the People correctly concede, that the oral waiver does not encompass his challenge to the severity of the sentence because " no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction' that he was also waiving his right to appeal any issue concerning the severity of the sentence" ( People v Lorenz , 119 AD3d 1450 , 1450 [4th Dept 2014], lv denied 24 NY3d 962 [2014]; see People v Kear

2016Although defendant signed a written appeal waiver that expressly encompassed a challenge to the sentence, County Court did not inquire before accepting the plea whether defendant understood the written waiver or whether she had even read the waiver (see id.; People v Banks, 126 AD3d 1276, 1277 [2015], lv denied 25 NY3d 1159 [2015]).