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

923/11
KA 08-02581
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARNELL NORTON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered May 6, 2008. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree. The judgment was affirmed by order of this Court entered
September 30, 2011 (87 AD3d 1310), and defendant on December 16, 2011
was granted leave to appeal to the Court of Appeals from the order of
this Court (18 NY3d 861), and the Court of Appeals on May 8, 2012
reversed the order and remitted the case to this Court for
clarification of the basis of this Court’s decision (___ NY3d ___ [May
8, 2012]).

     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: In a prior appeal (People v Norton, 87 AD3d 1310,
revd ___ NY3d ___ [May 8, 2012]), we summarily affirmed the judgment
convicting defendant of robbery in the first degree (Penal Law §
160.15 [2]). Defendant had contended that his sentence was unduly
harsh and severe. In reversing our order, the Court of Appeals
concluded that this Court may not summarily affirm the judgment
“without indicating whether [we] relied on the waiver [of the right to
appeal] or determined that the sentencing claim lacked merit” (Norton,
___ NY3d at ___). The Court remitted the matter to this Court “for
clarification of the basis of [our] decision” (id. at ___).

     Upon remittal, we clarify that we previously reviewed the merits
of defendant’s contention, having determined that there was no valid
waiver of the right to appeal, and we concluded that the sentence is
not unduly harsh or severe. Although Supreme Court referred to a
waiver of the right to appeal at the time of the plea, no oral waiver
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                                                         KA 08-02581

was elicited from defendant. In addition, neither the written waiver
of the right to appeal in the record nor the court’s brief mention of
that waiver during the plea proceeding distinguished the waiver of the
right to appeal from those rights automatically forfeited upon a plea
of guilty. Consequently, the record failed to “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).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
