Opinion
2018–12070 Ind.No. 2691/17
04-29-2020
The PEOPLE, etc., respondent, v. Emmanuel DEVALLON, appellant.
Paul Skip Laisure, New York, N.Y. (Priya Raghavan of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Isaac Belenkiy on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Priya Raghavan of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Isaac Belenkiy 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
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William M. Harrington, J.), imposed September 25, 2018, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his 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, 2019 N.Y. Slip Op. 08545 ; People v. Brown, 122 A.D.3d 133, 145–146, 992 N.Y.S.2d 297 ). Although the record includes a written appeal waiver form executed by the defendant, the Supreme Court did not engage in a comprehensive colloquy with the defendant and "did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents" ( People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). The record does not contain any assurances that the defendant, who was a first time felony offender, understood the distinct appellate rights he was waiving by executing the written waiver (see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Moreover, neither the court's colloquy nor the written waiver contain any clarifying language that appellate review remained available for select claims that may not be waived, including the voluntariness of the plea and appeal waiver, the legality of the sentence, and the jurisdiction of the court (see People v. Thomas, 34 N.Y.3d at 553, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545 ). 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.