Opinion
11-18-2015
The PEOPLE, etc., respondent, v. Lynda BURNETT–HICKS, appellant.
Seymour W. James, Jr., New York, N.Y. (Ellen Dille of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Ellen Dille of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Opinion
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (Murphy, J.), imposed December 15, 2011, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of her right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. George, 131 A.D.3d 623, 14 N.Y.S.3d 905; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554; People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627; People v. Mayo, 77 A.D.3d 683, 683–684, 908 N.Y.S.2d 353; People v. Olivier, 48 A.D.3d 486, 486, 849 N.Y.S.2d 790; cf. People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344). Although the defendant executed a written waiver of her right to appeal, the Supreme Court's colloquy amounted to nothing more than “a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily” (People v. Brown, 122 A.D.3d 133, 140, 992 N.Y.S.2d 297; see People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724; People v. Quezada, 122 A.D.3d 948, 948, 997 N.Y.S.2d 475; People v. Reyes, 121 A.D.3d 820, 821, 993 N.Y.S.2d 379). Under the circumstances here, we conclude that the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297; see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46).
Nevertheless, contrary to the defendant's contention, the period of postrelease supervision imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
ENG, P.J., BALKIN, SGROI and MILLER, JJ., concur.