Opinion
2018–06515 S.C.I. No. 2639/18
02-16-2022
The PEOPLE, etc., respondent, v. Marlon NAVARRO, appellant.
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel), for respondent.
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marguerite Dougherty, J.), rendered April 11, 2018, convicting him of criminal trespass in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the sentence imposed violated his rights under the Eighth Amendment to the United States Constitution and article I, section 5, of the New York State Constitution, prohibiting cruel and unusual punishment, is unpreserved for appellate review (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ), and, in any event, without merit (see People v. Rolling, 186 A.D.3d 1264, 127 N.Y.S.3d 874 ).
The record does not establish 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 ). The Supreme Court mischaracterized the nature of the right to appeal by stating that the defendant's conviction and sentence would be final (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 564–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Mojica, 178 A.D.3d 856, 856, 111 N.Y.S.3d 885 ), and the written waiver form did not overcome the deficiencies in the court's explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brown, 195 A.D.3d 943, 146 N.Y.S.3d 514 ). Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant's sentence is excessive (see People v. Seymour, 189 A.D.3d 1269, 1270, 134 N.Y.S.3d 211 ; People v. Mojica, 178 A.D.3d at 856, 111 N.Y.S.3d 885 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BARROS, J.P., CHAMBERS, ZAYAS and GENOVESI, JJ., concur.