Opinion
2017-13078 Ind. No. 2161/17
06-24-2020
The PEOPLE, etc., Respondent, v. Brandon MUNGIN, Appellant.
Paul Skip Laisure, New York, N.Y. (Hannah Zhao of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Isaac Belenkiy on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Hannah Zhao of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Isaac Belenkiy on the memorandum), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Deborah A. Dowling, J.), imposed October 24, 2017, 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 Supreme Court mischaracterized the nature of the waiver by stating, inter alia, that the defendant "would not have a right to challenge [his] sentence or conviction" (see People v. Thomas, 34 N.Y.3d 545, 564–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Where, as here, "a trial court has utterly mischaracterized the nature of the right a defendant was being asked to cede, an appellate court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights" ( id. at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [internal quotation marks omitted] ). Thus, the purported waiver of the right to appeal 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 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.