Opinion
2014-08-13
The PEOPLE, etc., respondent, v. Tirone MOORE, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Riviezzo, J.), imposed April 11, 2012, 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. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was forgoing” (People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Johnson, 113 A.D.3d 635, 635, 977 N.Y.S.2d 896). Therefore, notwithstanding the defendant's execution of the written appeal waiver form, it cannot be said that he knowingly, intelligently, and voluntarily waived his right to appeal ( see People v. Pressley, 116 A.D.3d 794, 983 N.Y.S.2d 322). Accordingly, review of the defendant's excessive sentence claim is not precluded.
Nevertheless, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
ENG, P.J., DILLON, AUSTIN, SGROI and MALTESE, JJ., concur.