THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. QUINTRELL JOE DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

Now, upon remittitur from the Court of Appeals,

It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.

Memorandum:  On a prior appeal (People v. Joe, 87 AD3d 1266, revd _ NY3d _ [May 8, 2012] ), we summarily affirmed the judgment convicting defendant of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ).   Defendant's sole contention was that his sentence was unduly harsh and severe.   In reversing our order, the Court of Appeals concluded that it was impermissible for this Court to affirm the judgment summarily “without indicating whether [we] relied on the waiver [of the right to appeal] or determined that the sentencing claim lacked merit” (Joe, _ NY3d at _).  The Court remitted the matter to this Court “for clarification of the basis of [our] decision” (id. at _).

Upon remittitur, we conclude that defendant's waiver of the right to appeal is invalid inasmuch as the minimal perfunctory inquiry made by Supreme Court was “insufficient to establish that the court ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ “ (People v. Brown, 296 A.D.2d 860, lv denied 98 N.Y.2d 767;  see People v. Hamilton, 49 AD3d 1163, 1164).   We further conclude, however, that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court