THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SIERRA CLARK DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of rape in the first degree (Penal Law § 130.35[3] ).  We agree with defendant that her waiver of the right to appeal is invalid and thus does not preclude her challenge on appeal to the severity of the sentence.  Although the record reflects that defendant executed a written waiver of the right to appeal, County Court “did not inquire of defendant whether [s]he understood the written waiver or whether [s]he had even read the waiver before signing it” (People v. Grucza, 145 AD3d 1505, 1506 [internal quotation marks omitted] ).  Thus, the record establishes that the court failed to ensure that “defendant ․ entered a knowing, intelligent and voluntary appeal waiver” (People v. Bradshaw, 18 NY3d 257, 265;  see People v. Lopez, 6 NY3d 248, 256).  We nevertheless reject defendant's contention that the bargained-for sentence is unduly harsh and severe.

Frances E. Cafarell

Clerk of the Court