Opinion
2013-08-14
The PEOPLE, etc., respondent, v. Christopher SPRINGER, appellant.
Motion by the appellant (a) for leave to reargue an appeal from a judgment of the Supreme Court, Kings County, rendered April 20, 2011, which was determined by decision and order of this Court dated March 13, 2013, and (b) to withdraw his argument relating to the duration of the order of protection. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ORDERED that the branch of the motion which is to withdraw the appellant's argument relating to the duration of the order of protection is denied; and it is further, ORDERED that the branch of the motion which is for leave to reargue is granted and, upon reargument, the decision and order of this Court dated March 13, 2013 ( People v. Springer, 104 A.D.3d 794, 960 N.Y.S.2d 501), is recalled and vacated, and the following decision and order is substituted therefor: Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; David Xu on the memorandum), for respondent.
Motion by the appellant (a) for leave to reargue an appeal from a judgment of the Supreme Court, Kings County, rendered April 20, 2011, which was determined by decision and order of this Court dated March 13, 2013, and (b) to withdraw his argument relating to the duration of the order of protection.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the branch of the motion which is to withdraw the appellant's argument relating to the duration of the order of protection is denied; and it is further,
ORDERED that the branch of the motion which is for leave to reargue is granted and, upon reargument, the decision and order of this Court dated March 13, 2013 ( People v. Springer, 104 A.D.3d 794, 960 N.Y.S.2d 501), is recalled and vacated, and the following decision and order is substituted therefor:
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; David Xu on the memorandum), for respondent.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered April 20, 2011, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.
ORDERED that the judgment is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, however, the Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. 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. Grant, 83 A.D.3d 862, 862–863, 921 N.Y.S.2d 285;cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” ( People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;People v. Vasquez, 101 A.D.3d 1054, 1055, 956 N.Y.S.2d 171).
Nevertheless, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention that the duration of the order of protection issued at the time of sentencing failed to take into account his jail-time credits and exceeded the maximum time limit of CPL 530.13(4) is without merit ( see People v. Williams, 19 N.Y.3d 100, 945 N.Y.S.2d 629, 968 N.E.2d 983).