Opinion
2016-01249 Ind. No. 5664/15
08-22-2018
The PEOPLE, etc., respondent, v. Joseph ZIRKEL, appellant.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Walter Halstad on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Walter Halstad on the memorandum), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, LEONARD B. AUSTIN, JEFFREY A. COHEN, BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed January 6, 2016, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence 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, this 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 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. Guniss, 160 A.D.3d 895, 896, 75 N.Y.S.3d 224 ; People v. Kupershmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139 ; People v. Burnett–Hicks, 133 A.D.3d 773, 774, 19 N.Y.S.3d 181 ). Although the Supreme Court indicated that the defendant executed a written waiver of his right to appeal, the written waiver is not contained in the record on appeal. The court's colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver (see People v. Guniss, 160 A.D.3d at 896, 75 N.Y.S.3d 224 ; People v. Burnett–Hicks, 133 A.D.3d at 774, 19 N.Y.S.3d 181 ). The court failed to ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents (see People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Under these circumstances, we conclude that the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Guniss, 160 A.D.3d at 896, 75 N.Y.S.3d 224 ; People v. Johnson, 157 A.D.3d 964, 965, 67 N.Y.S.3d 492 ; People v. Smith, 156 A.D.3d 944, 66 N.Y.S.3d 140 ; People v. Kupershmidt, 152 A.D.3d at 798, 59 N.Y.S.3d 139 ).
However, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.