People v. Lugo, 2015-06035
| Court | New York Supreme Court Appellate Division |
| Citation | 170 A.D.3d 748,95 N.Y.S.3d 349 |
| Decision Date | 06 March 2019 |
| Parties | The PEOPLE, etc., Respondent, v. Edgar LUGO, Appellant. |
| Docket Number | 2015-06035,Ind. No. 14-00663 |
170 A.D.3d 748
95 N.Y.S.3d 349
The PEOPLE, etc., Respondent,
v.
Edgar LUGO, Appellant.
2015-06035
Ind. No. 14-00663
Supreme Court, Appellate Division, Second Department, New York.
Submitted - November 13, 2018
March 6, 2019
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the judgment is modified, on the law, by vacating the provisions thereof directing the defendant to make restitution in the sum of $ 73,000, plus a surcharge in the sum of $ 7,300; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a hearing and new determination concerning the proper amounts of restitution and surcharge, and the manner of payment thereof.
The defendant was charged by indictment with attempted murder in the second degree and assault in the first degree. On January 8, 2015, the defendant entered a plea of guilty to assault in the first degree. During the plea allocution, the County Court told the defendant that "when [the court does] in fact impose sentence upon [him], [he] must waive and give up [his] right to appeal." On February 10, 2015, the court imposed sentence, including restitution in the sum of $ 73,000, plus a surcharge in the sum of $ 7,300. After the sentence was pronounced, the defendant executed the written waiver of the right to appeal, which was the subject of a voir dire conducted by the court. The defendant appeals.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid because the County Court's terse colloquy at the plea allocution suggested that waiving the right to appeal was mandatory, and the court failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving it (see People v. Brown, 122 A.D.3d 133, 137, 142, 992 N.Y.S.2d 297 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ; People v. Salgado, 111 A.D.3d 859, 859, 975 N.Y.S.2d 172 ; People v. Nugent, 109 A.D.3d 625, 970 N.Y.S.2d 634 ). Furthermore, the defendant
did not execute a written waiver of the right to appeal and the court did not conduct a voir dire with respect thereto until after the sentence was pronounced. These circumstances do not establish that the defendant knowingly, voluntarily, and intelligently waived his right to...
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People v. Headley, 2014-05892
...implicate either CPL 310.30 or the notice provisions outlined in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (see 170 A.D.3d 748 People v. Damiano, 87 N.Y.2d at 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 ; People v. Houston, 143 A.D.3d 737, 740, 38 N.Y.S.3d 259 ; People v. ......
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People v. Headley, 2014-05892
...implicate either CPL 310.30 or the notice provisions outlined in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (see 170 A.D.3d 748 People v. Damiano, 87 N.Y.2d at 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 ; People v. Houston, 143 A.D.3d 737, 740, 38 N.Y.S.3d 259 ; People v. ......