Opinion
2017–05431 S.C.I. No. 284/17
10-03-2018
The PEOPLE, etc., respondent, v. Marc BRATTON, appellant.
Paul Skip Laisure, New York, N.Y. (Charity L. Brady of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Charity L. Brady of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Stephanie Zaro, J.), imposed March 21, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
"A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence" ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Under the circumstances of this case, 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. Sanders, 162 A.D.3d 690, 74 N.Y.S.3d 763 ). The record does not demonstrate that the defendant understood the distinction between the right to appeal he was asked to forfeit as a condition of the plea agreement and other trial rights he automatically forfeited upon his plea of guilty (see People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ; People v. Santeramo, 153 A.D.3d 1286, 1286–1287, 61 N.Y.S.3d 295 ). Further, although the defendant allegedly signed a written waiver of his right to appeal, the written waiver is not included in the record. Moreover, the Supreme Court did not ascertain on the record whether the defendant read the written waiver or was aware of its contents (see People v. Medina, 161 A.D.3d at 779, 76 N.Y.S.3d 629 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Since the defendant's purported waiver of his right to appeal was invalid, this Court is not precluded from reviewing 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 ).
LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.