PEOPLE v. MOYETT (2006)

OPINION OF THE COURT

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the excessive sentencing issue.

Defendant's purported waiver of appeal during the plea colloquy was invalid because the court advised defendant that  “by pleading guilty you give up your right to appeal the conviction.”   Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea (see People v. Billingslea, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).   Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT concur in memorandum.