People v. DeJesus-Ocasio

• Decision Date: 11 March 2021
• Docket Number: 110146
• Parties: The PEOPLE of the State of New York, Respondent, v. Noel DEJESUS–OCASIO, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1264
143 N.Y.S.3d 160

The PEOPLE of the State of New York, Respondent,
v.
Noel DEJESUS–OCASIO, Appellant.

110146

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

Calendar Date: February 4, 2021
Decided and Entered: March 11, 2021

143 N.Y.S.3d 161

Salvatore C. Adamo, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered October 31, 2017 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant waived indictment and was charged in a superior court information with criminal sale of a controlled substance in the third degree. He pleaded guilty to this crime and purportedly waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced as a second felony offender to 4½ years in prison, followed by three years of postrelease supervision. Defendant appeals.

Initially, defendant contends that his waiver of the right to appeal was not knowing, voluntary and intelligent. Based upon our review of the record, we agree. " ‘[I]n determining whether the record demonstrates that a defendant understood an appeal waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgements of understanding, a written waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system’ " ( People v. Tomko, 185 A.D.3d 1356, 1357, 128 N.Y.S.3d 98 [2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 521, 158 N.E.3d 538 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). Here, although Supreme Court advised defendant of the separate and distinct nature of the right to appeal, it did not ascertain that defendant discussed it with counsel and that he...