People v. Qoshja

958 N.E.2d 545, 17 N.Y.3d 910, 934 N.Y.S.2d 367, 2011 NY Slip Op 8180

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in accordance with this memorandum.

The Appellate Division’s summary decision and order leaves it unclear whether the panel reached the merits of defendant Ermal Qoshja’s claim or predicated its affirmance on the waiver of appeal. We remit to the Appellate Division to clarify this question and, if appropriate, to consider the merits. We repeat what we said in People v Callahan (80 NY2d 273, 285 [1992]):

“[I]n cases where there has been a bargained-for waiver of the right to appeal and the intermediate appellate court determines that the judgment of conviction should be affirmed, it would be helpful if the intermediate appellate court would specify whether its disposition is based on the existence of an enforceable waiver or instead on the merits of the defendant’s appellate claims. Such specificity would facilitate further appellate review and minimize unnecessary remittals.”

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order reversed, etc.