Opinion
2016-10955 Ind. No. 4754/15
11-28-2018
The PEOPLE, etc., Respondent, v. Benito GOMEZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Peter N. Pearl of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Peter N. Pearl of counsel), for respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Betty J. Williams, J.), imposed September 27, 2016, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see also People v. Jones, 158 A.D.3d 775, 68 N.Y.S.3d 769 ; People v. Policastro, 142 A.D.3d 679, 36 N.Y.S.3d 827 ). The Supreme Court's statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish (see People v. Guarchaj, 122 A.D.3d 878, 996 N.Y.S.2d 372 ). Additionally, there is "no indication in the record 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" ( People v. Cantarero, 123 A.D.3d 841, 996 N.Y.S.2d 724 ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Woods, 115 A.D.3d 997, 982 N.Y.S.2d 180 ). Although the defendant signed a written waiver of the right to appeal, the court never elicited from the defendant that he read and understood the document before signing it (see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Brown, 122 A.D.3d 133, 139, 992 N.Y.S.2d 297 ). Thus, the defendant's purported waiver of his right to appeal does not preclude review of his excessive sentence contentions.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., SGROI, BARROS and CHRISTOPHER, JJ., concur.