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

30
KA 11-01580
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN BANKS, 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 (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered July 26, 2011. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
revoking the sentence of probation upon his admission to violating a
condition thereof and sentencing him to a term of imprisonment for his
conviction of criminal possession of a controlled substance in the
fifth degree (Penal Law § 220.06 [5]). In appeal No. 2, defendant
appeals from a judgment convicting him, upon his plea of guilty, of
criminal possession of a controlled substance in the third degree (§
220.16 [1]). We agree with defendant that, in each appeal, the waiver
of the right to appeal “does not encompass his challenge to the
severity of the sentence because ‘no mention was made on the record
during the course of the allocution concerning the waiver of
defendant’s right to appeal’ with respect to his conviction that he
was also waiving his right to appeal any issue concerning the severity
of the sentence” (People v Peterson, 111 AD3d 1412, 1412; see People v
Maracle, 19 NY3d 925, 928).

     We further agree with defendant that the written waiver of the
right to appeal does not preclude him from challenging the sentence in
each appeal. “A detailed written waiver can supplement a court’s
on-the-record explanation of what a waiver of the right to appeal
entails, but a written waiver does not, standing alone, provide
sufficient assurance that the defendant is knowingly, intelligently
and voluntarily giving up his or her right to appeal” (People v
                                 -2-                            30
                                                         KA 11-01580

Pressley, 116 AD3d 794, 795, lv denied 23 NY3d 967 [internal quotation
marks omitted]). Here, although defendant signed such a written
waiver in each appeal, the record establishes that County Court did
not sufficiently explain the significance of the appeal waiver or
ascertain defendant’s understanding thereof (see People v Frysinger,
111 AD3d 1397, 1398; see also Pressley, 116 AD3d at 795; see generally
People v Bradshaw, 18 NY3d 257, 267). Nevertheless, we reject
defendant’s challenge to the severity of the sentence in each appeal.




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
