Opinion
2016–04603 Ind.No. 5838/15
08-01-2018
The PEOPLE, etc., respondent, v. Cleveland WELCH, appellant.
The Legal Aid Society, New York, N.Y. (Heidi Bota of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
The Legal Aid Society, New York, N.Y. (Heidi Bota of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J.), rendered March 30, 2016, convicting him of assault in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record of the plea proceeding does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Brown, 122 A.D.3d 133, 142, 992 N.Y.S.2d 297 ). Although there is a written waiver of the right to appeal signed by the defendant in the record, there is no mention of it in the transcript of the plea proceeding, and thus, the court failed to ascertain on the record whether the defendant had read the waiver or whether he was 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, contrary to the People's contention, the purported appeal waiver does not preclude the defendant from challenging his conviction and sentence (see People v. Worrell, 158 A.D.3d 828, 68 N.Y.S.3d 915 ). However, the defendant's challenge to the sufficiency of the plea allocution is unpreserved for appellate review (see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Kelly, 151 A.D.3d 751, 752, 55 N.Y.S.3d 445 ). In any event, the plea allocution was sufficient inasmuch as it showed that the defendant understood the charges and made an intelligent decision to accept the plea (see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ). Contrary to the defendant's contention, it was not necessary that he provide a factual exposition for each element of the offense to which he entered a plea of guilty (see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Fooks, 21 N.Y.2d 338, 347, 287 N.Y.S.2d 659, 234 N.E.2d 687 ).
Furthermore, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
LEVENTHAL, J.P., SGROI, LASALLE and BRATHWAITE NELSON, JJ., concur.