People v. Cooper

• Decision Date: 15 January 2020
• Docket Number: 2018–07465,2018–07462,Ind.Nos. 5585/12, 4668/13
• Citation: 179 A.D.3d 832,113 N.Y.S.3d 882 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Kane COOPER, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 832
113 N.Y.S.3d 882 (Mem)

The PEOPLE, etc., Respondent,
v.
Kane COOPER, Appellant.

2018–07462
2018–07465
Ind.Nos. 5585/12, 4668/13

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

Argued—October 28, 2019
January 15, 2020

Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Jade W. Sobh on the brief), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

179 A.D.3d 832

Appeals by the defendant from two resentences of the Supreme Court, Kings County (Joseph E. Gubbay, J.), both imposed May 30, 2018, upon his convictions of criminal possession of a weapon in the second degree under Indictment

179 A.D.3d 833

No. 5585/12, and assault in the first degree under Indictment No. 4668/13, respectively, upon his pleas of guilty, after remittitur from this Court for resentencing (see People v. Cooper , 159 A.D.3d 979, 70 N.Y.S.3d 850 ).

ORDERED that the resentences are affirmed.

We agree with the defendant's contention that his purported waiver of the right to appeal was invalid because, inter alia, the Supreme Court's statement, "you waived your right to trial, you waived your right to appeal," effectively lumped the waiver of the right to appeal with the "panoply of trial rights automatically forfeited upon pleading guilty" ( People v. Lopez , 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Gonzalez , 142 A.D.3d 717, 718, 36 N.Y.S.3d 920 ; People v. Chambers , 142 A.D.3d 672, 36 N.Y.S.3d 824 ; People v. Brown , 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ). Thus, the purported waiver does not preclude appellate review of the defendant's claim that the court improvidently exercised its discretion in denying him youthful offender treatment. " ‘The determination of whether to grant or...