Opinion
2013–02713 Ind. No. 2360/12
01-16-2019
The PEOPLE, etc., respondent, v. Bernsley BARTHELEMY, appellant.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Ruby D. Andrade on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Ruby D. Andrade on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Neil Jon Firetog, J.), imposed November 19, 2012, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
"A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence" ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, the defendant's purported waiver of the right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The record does not demonstrate that the defendant understood the distinction between the right to appeal he was asked to give up as a condition of the plea agreement and other trial rights he automatically forfeited upon his guilty plea (see People v. Bratton, 165 A.D.3d 693, 82 N.Y.S.3d 738 ; People v. Reillo, 164 A.D.3d 1476, 81 N.Y.S.3d 909 ). Moreover, the Supreme Court's statement, "if you went to trial and were convicted you would have what is known as the right of appeal," was misleading, because it suggested that only defendants who are convicted after trial have a right to appeal (see People v. Odom, 164 A.D.3d 1475, 83 N.Y.S.3d 624 ). Since the defendant's purported waiver of the right to appeal was invalid, this Court is not precluded from reviewing the defendant's contention that the sentence imposed was excessive.
Nevertheless, 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, DUFFY and LASALLE, JJ., concur.