Opinion
2017–12144 Ind.No. 428/17
06-17-2020
The PEOPLE, etc., Respondent, v. Corey RUSSELL, Appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin Welikson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Marielle Burnett on the memorandum), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William M. Harrington, J.), imposed August 25, 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. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Pinchback, 173 A.D.3d 773, 99 N.Y.S.3d 689 ; People v. Baker, 154 A.D.3d 693, 60 N.Y.S.3d 833 ). In particular, during the plea colloquy, the Supreme Court, after advising the defendant of the rights automatically forfeited upon a plea of guilty, informed the defendant, "By pleading guilty, you also give up or waive your right to appeal" (see People v. Moyett, 7 N.Y.3d at 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ). Moreover, although the defendant signed a written waiver, the 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. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Baldassarre, 175 A.D.3d 1315, 105 N.Y.S.3d 902 ; People v. Pinchback, 173 A.D.3d 773, 99 N.Y.S.3d 689 ). Accordingly, and in light of the defendant's age, inexperience, and background (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ), the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal. The purported waiver, therefore, does not preclude appellate review of the defendant's excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, COHEN and CONNOLLY, JJ., concur.