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The People &C v. Tyray Gilliam

New York Court of Appeals


May 8, 2012

THE PEOPLE &C., RESPONDENT,
v.
TYRAY GILLIAM, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
ALBERTO DE LUNA, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
QUINTRELL JOE, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
DARNELL NORTON, APPELLANT.

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

MEMORANDUM:

In each case, the order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in accordance with this memorandum. In these unrelated cases, defendants pleaded guilty to a particular crime and waived the right to appeal. Each defendant subsequently challenged the validity of the waiver and asserted that the sentence was excessive. The Appellate Division summarily affirmed without indicating whether it relied on the waiver or determined that the sentencing claim lacked merit (86 AD3d 923 [4th Dept 2011], lv granted 17 NY3d 953 [2011]; 86 AD3d 433 [1st Dept 2011], lv granted 17 NY3d 952 [2011]; 87 AD3d 1266 [4th Dept 2011], lv granted 18 NY3d 859 [2011]; 87 AD3d 1310 [4th Dept 2011], lv granted 18 NY3d 861 [2011]). This was impermissible under People v Qoshja (17 NY3d 910, 911 [2011]).

Consequently, we reverse and remit each case to the Appellate Division for clarification of the basis of its decision.

For Case No. 138 SSM 7: On review of submissions pursuant to section 500.11 of the Rules, order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

For Each Other Case: On review of submissions pursuant to section 500.11 of the Rules, order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

20120508

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