           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

534
KA 13-00308
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAVID BROWN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered November 13, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of burglary in the third degree
(Penal Law § 140.20) and, in appeal No. 2, he appeals from a judgment
convicting him upon his plea of guilty of burglary in the third degree
(id.) under a separate indictment. It is undisputed that, pursuant to
the terms of the plea agreement for both convictions, defendant was
permitted to participate in the judicial diversion court and County
Court would impose consecutive terms of imprisonment in the event that
defendant did not successfully complete the drug treatment program.
We agree with defendant’s contention in both appeals that the written
waiver of the right to appeal that he signed as part of the “treatment
court contract,” approximately two weeks after he pleaded guilty, does
not constitute a valid waiver of the right to appeal. It is axiomatic
that “[t]he record must establish that the defendant understood that
the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d
248, 256) and, here, the plea record is silent with respect to the
waiver of the right to appeal.

     We nevertheless reject defendant’s contention in each appeal that
the sentence imposed is unduly harsh and severe.

Entered:    June 10, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
