Opinion
2017–10764 Ind. No. 2815/16
12-23-2020
The PEOPLE, etc., respondent, v. Jeremiah WALKER, appellant.
Paul Skip Laisure, New York, N.Y. (Patricia Pazner of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Patricia Pazner of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel; Marielle Burnett on the memorandum), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Michael Gary, J.), imposed June 28, 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 his right to appeal was invalid, as the Supreme Court mischaracterized the nature of the waiver by stating, inter alia, that the defendant was giving up his right to appeal his case and his right to have an attorney assigned on appeal (see People v. Thomas, 34 N.Y.3d 545, 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Where, as here, "a trial court has utterly mischaracterized the nature of the right a defendant was being asked to cede, an appellate court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights" ( People v. Thomas, 34 N.Y.3d at 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Further, in light of a disturbance in the courtroom during the plea proceeding, and the defendant's mental health history, the court's limited colloquy did not ensure that the defendant understood the distinction between the right to appeal and the other rights that he automatically forfeited upon his plea of guilty (see People v. Fuller, 163 A.D.3d 715, 76 N.Y.S.3d 852 ). Further, the written waiver form did not overcome the ambiguities in the court's on-the-record explanation of the right to appeal (see People v. Thomas, 34 N.Y.3d at 568, 144 N.E.3d 970 ). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim (see People v. Fuller, 163 A.D.3d at 715, 76 N.Y.S.3d 852 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., CHAMBERS, AUSTIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.