Opinion
2017–03745 Ind. No. 5614/15
01-23-2019
The PEOPLE, etc., Respondent, v. Salvador VAQUERO, Appellant.
Paul Skip Laisure, New York, N.Y. (Isa Chakarian of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Isa Chakarian of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Marielle Burnett on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew D'Emic, J.), imposed April 21, 2016, 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 (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Little, 127 A.D.3d 1235, 1235–1236, 5 N.Y.S.3d 896 ; People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297, 992 N.Y.S.2d 297 ). The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Kupershmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139 ; People v. Burnett–Hicks, 133 A.D.3d 773, 19 N.Y.S.3d 181 ). Moreover, although the People contend that the defendant executed a written waiver of appeal that was in Spanish, which the defendant does not dispute, the Supreme Court failed to ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether the defendant was even aware of its contents (see People v. Iovino, 142 A.D.3d 561, 561–562, 36 N.Y.S.3d 216 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.