| People v Morales |
| 2017 NY Slip Op 08100 |
| Decided on November 16, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 16, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kern, Singh, JJ.
5137 2829/14
v
Pedro Morales, Defendant-Appellant.
Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nancy D. Killan of counsel), for respondent.
Appeal from judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered April 5, 2016, convicting defendant, upon his plea of guilty, of course of sexual conduct against a child, and sentencing him to a term of 13 years, held in abeyance, the application by assigned counsel to withdraw on the ground that there are no non-frivolous issues to be raised on appeal (People v Saunders, 52 AD2d 833 [1st Dept 1976]), is denied, and the time to perfect the appeal is enlarged to the March 2018 Term of this Court.
Counsel states that defendant validly waived his right to appeal, thus foreclosing any challenge to the length of the sentence imposed. However, a nonfrivolous argument could be made that the written waiver of appeal signed by defendant is invalid (see People v Powell, 140 AD3d 401 [1st Dept 2016], lv denied 28 NY3d 1074 [2016]; People v Santiago, 119 AD3d 484 [1st Dept 2014], lv denied 24 NY3d 964 [2014]). We note that the written waiver in this case contains different language than those waivers found invalid in Powell and Santiago, and the court here conducted a thorough oral colloquy. This issue requires briefing. Absent a valid waiver of the right to appeal, an excessive sentence issue survives.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 16, 2017
CLERK