People v. Yancey

• Decision Date: 27 April 2022
• Docket Number: 2019–04988,Ind. No. 16–00530
• Citation: 204 A.D.3d 1044,165 N.Y.S.3d 359 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Hasan YANCEY, etc., appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1044
165 N.Y.S.3d 359 (Mem)

The PEOPLE, etc., respondent,
v.
Hasan YANCEY, etc., appellant.

2019–04988
Ind. No. 16–00530

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

Submitted—February 25, 2022
April 27, 2022

Jeffrey F. Kebrdle II, White Plains, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Shea Scanlon Lomma of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

204 A.D.3d 1044

Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered May 3, 2018, convicting him of attempted robbery in the first degree (two counts) and robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of the right to appeal was invalid because the County Court mischaracterized the appellate rights waived as encompassing an absolute bar to filing an appellate brief, and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Keith, 201 A.D.3d 738, 156 N.Y.S.3d 893 ). Moreover, the record reflects that the court made its own offer of sentence to the defendant and required the defendant to waive his right to appeal, without setting forth any reason for demanding an appeal waiver (see People v. Esposito, 187 A.D.3d 781, 130 N.Y.S.3d 331 ; People v. Sutton, 184 A.D.3d 236, 244–245, 125 N.Y.S.3d 739 ). Thus, the defendant's purported waiver of the right to appeal does not preclude appellate review of his challenge to the factual sufficiency of the plea allocution.

However, the defendant's challenge to the factual sufficiency

204 A.D.3d 1045

of the plea allocution is unpreserved for appellate review because he did not move to...