Opinion
2018-02499 Ind. No. 4713/16
06-10-2020
The PEOPLE, etc., Respondent, v. Leila AQUINO, Appellant.
Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Maria Torres on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Maria Torres on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the sentence is affirmed.
The defendant's purported waiver of her right to appeal was invalid (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brown, 122 A.D.3d 133, 146, 992 N.Y.S.2d 297 ). The record does not demonstrate that the defendant understood that the appellate rights she was waiving were separate and distinct from the rights she was waiving by entering her plea of guilty. Thus, "the record fails to demonstrate a full appreciation of the consequences of such waiver" (see People v. Brown, 122 A.D.3d at 146, 992 N.Y.S.2d 297 [internal quotation marks omitted] ). Moreover, the Supreme Court's statement to the defendant that by waiving her right to appeal, the defendant's "sentence and conviction will be final in this case," without more, suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The written waiver form does not overcome the ambiguities in the court's explanation of the right to appeal because the waiver form does not contain clarifying language that appellate review remained available for select issues (see 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Thus, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim (see People v. Fuller, 163 A.D.3d 715, 715, 76 N.Y.S.3d 852 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.