Opinion
2017–06044 Ind. No. 9963/16
03-13-2019
The PEOPLE, etc., Respondent, v. Dwayne BUTTS, Appellant.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Peter N. Pearl of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Peter N. Pearl of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, 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 May 3, 2017, upon his plea of guilty, on the ground that the sentence imposed 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 ). Here, the defendant's purported waiver of the 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 ). The record does not demonstrate that the defendant understood the distinction between the right to appeal he was asked to give up as a condition of the plea agreement and other trial rights he automatically forfeited upon his plea of guilty (see People v. Bratton, 165 A.D.3d 693, 82 N.Y.S.3d 738 ). Further, although the defendant signed a written waiver of his right to appeal, 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 778, 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 the 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, ROMAN, MALTESE and CONNOLLY, JJ., concur.