Opinion
2017–12780 Ind. No. 10135/17
06-05-2019
The PEOPLE, etc., Respondent, v. Jamal PINCHBACK, Appellant.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed October 26, 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 the right to appeal was invalid, as the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v. Melendez , 164 A.D.3d 1473, 84 N.Y.S.3d 513 ; People v. James , 164 A.D.3d 1363, 81 N.Y.S.3d 743 ). Further, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or whether he was even aware of its contents (see People v. Bradshaw , 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Santeramo , 153 A.D.3d 1286, 61 N.Y.S.3d 295 ; People v. Cambridge , 145 A.D.3d 795, 795–796, 44 N.Y.S.3d 96 ). Accordingly, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and, thus, the waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Dixon , 163 A.D.3d 988, 989, 81 N.Y.S.3d 186 ; People v. Brown , 122 A.D.3d 133, 992 N.Y.S.2d 297 ).
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, MALTESE and CHRISTOPHER, JJ., concur.