People v. Diallo

• Decision Date: 14 July 2021
• Docket Number: Ind. Nos. 2769/17, 3843/17,2018–02341, 2018–02342
• Citation: 196 A.D.3d 598,147 N.Y.S.3d 454 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Boubacar DIALLO, appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 598

147 N.Y.S.3d 454 (Mem)

The PEOPLE, etc., respondent, v. Boubacar DIALLO, appellant.

2018–02341, 2018–02342

Ind. Nos. 2769/17, 3843/17

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

Submitted—June 23, 2021

July 14, 2021

Paul Skip Laisure, New York, N.Y. ( William Kastin of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. ( Keith Dolan of counsel; Jong Hwa Ryu on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeals by the defendant, as limited by his motion, from two sentences of the Supreme Court, Kings County (Miriam Cyrulnik, J.), both imposed January 12, 2018, upon his pleas of guilty, on the ground that the sentences were excessive.

ORDERED that the sentences are affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, since the Supreme Court did not discuss the appeal waivers until after the defendant had already admitted his guilt as part of the plea agreement ( see People v. Adyl K., 187 A.D.3d 1208, 1209, 131 N.Y.S.3d 642 ; People v. Sutton, 184 A.D.3d 236, 245, 125 N.Y.S.3d 739 ). Further, although the defendant executed written waivers of the right to appeal, the written waivers mischaracterized the rights encompassed by the appeal waivers ( see People v. Thomas, 34 N.Y.3d 545, 564–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

However, the sentences imposed were not excessive ( see CPL 470.15[6][b] ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

MASTRO, J.P., CHAMBERS, MILLER, DUFFY and WOOTEN, JJ., concur.