Opinion
2017–03147 Ind. No. 9324/14
10-23-2019
The PEOPLE, etc., Respondent, v. Octavio BATISTA, Appellant.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman of counsel), for appellant. Letitia James, Attorney General, New York, N.Y. (Matthew B. Keller of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Benjamin S. Litman of counsel), for appellant.
Letitia James, Attorney General, New York, N.Y. (Matthew B. Keller of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Danny K. Chun, J.), imposed March 16, 2016, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). It is not apparent from the face of the record that the defendant had a full appreciation of the consequences and understanding of the waiver of the right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The Supreme Court's brief colloquy failed to sufficiently advise the defendant of the nature of the right to appeal and the consequences of waiving it (see People v. Bakayoko, 174 A.D.3d 730, 731, 102 N.Y.S.3d 480 ; People v. Torres, 168 A.D.3d 887, 888, 89 N.Y.S.3d 899 ; People v. Iovino, 142 A.D.3d 561, 562, 36 N.Y.S.3d 216 ). Although the defendant signed a written waiver of the right to appeal, the court did not ascertain on the record whether the defendant had read the waiver or discussed it with his attorney, or whether he was aware of its contents (see People v. Cambridge, 168 A.D.3d 1092, 90 N.Y.S.3d 911 ; People v. Iovino, 142 A.D.3d at 561–562, 36 N.Y.S.3d 216 ). Thus, the purported appeal waiver does not preclude appellate 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 ).
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.