Opinion
2016-05827 Ind. No. 10090/16
09-12-2018
The PEOPLE, etc., respondent, v. Sandra CARDIELLO, appellant.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel; Victoria Randall on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel; Victoria Randall on the memorandum), for respondent.
ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Suzanne J. Melendez, J.), imposed May 2, 2016, upon her plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid and, thus, does not preclude review of her excessive sentence claim. The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to her plea of guilty (see People v. Kupershmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139 ; People v. Black, 144 A.D.3d 935, 41 N.Y.S.3d 126 ; People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ), or that she otherwise understood the nature of the right to appeal (see People v. Kupershmidt, 152 A.D.3d at 798, 59 N.Y.S.3d 139 ). Although the defendant executed a written appeal waiver form, the Supreme Court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether she was aware of its contents (see People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ; see also People v. Kupershmidt, 152 A.D.3d at 798, 59 N.Y.S.3d 139 ; People v. Black, 144 A.D.3d at 936, 41 N.Y.S.3d 126 ). Under these circumstances, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ).
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., ROMAN, COHEN, DUFFY and LASALLE, JJ., concur.