Opinion
2014-06131, Ind. No. 2487/10.
07-26-2017
The PEOPLE, etc., respondent, v. Nick ETIENNE, appellant.
Lynn W.L. Fahey, New York, NY (Erin R. Tomlinson of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel; Ruby D. Andrade on the memorandum), for respondent.
Lynn W.L. Fahey, New York, NY (Erin R. Tomlinson of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel; Ruby D. Andrade on the memorandum), for respondent.
RANDALL T. ENG, P.J., MARK C. DILLON, SANDRA L. SGROI, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Donnelly, J.), imposed October 10, 2013, 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, as the record fails to establish that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; People v. Bradshaw, 18 N.Y.3d 257, 272–273, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record (see People v. De La Rosa, 148 A.D.3d 927, 48 N.Y.S.3d 606 ; People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896 ). Moreover, "[t]he defendant's execution of a written waiver ‘is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right’ " ( People v. Cuevas–Alcantara, 136 A.D.3d 650, 650, 23 N.Y.S.3d 902, quoting People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Here, the record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Gonzalez, 150 A.D.3d 1024, 52 N.Y.S.3d 229 ; People v. De La Rosa, 148 A.D.3d 927, 48 N.Y.S.3d 606 ; People v. Cuevas–Alcantara, 136 A.D.3d 650, 23 N.Y.S.3d 902 ; People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896 ; People v. Quezada, 122 A.D.3d 948, 997 N.Y.S.2d 475 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). The Supreme Court's statement that "[i]f you understand the rights you've waived by pleading guilty, if you recognize that the plea is final and you're satisfied with these proceedings, please sign the waiver of your right to appeal," was insufficient (see People
v. Gonzalez, 150 A.D.3d 1024, 52 N.Y.S.3d 229 ; People v. Collins, 141 A.D.3d 729, 35 N.Y.S.3d 656 ). Thus, the waiver does not preclude review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).