Opinion
2019–09020 Ind.No. 1890/17
11-04-2020
The PEOPLE, etc., Respondent, v. Kamel CARDWELL, Appellant.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, William H. Branigan, and Hannah X. Scotti of counsel; Yvonne Zhu on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, William H. Branigan, and Hannah X. Scotti of counsel; Yvonne Zhu on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry A. Schwartz, J.), imposed March 22, 2019, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid. "The mere explanation of the right to appeal and the consequences of a waiver, without an affirmative response from the defendant that he or she understands the rights as explained, is insufficient to effect a valid waiver" ( People v. Dubose, 176 A.D.3d 858, 859, 107 N.Y.S.3d 869 ; see People v. Bradshaw, 18 N.Y.3d 257, 265–266, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Under the circumstances of this case, the defendant's execution of a written waiver of the right to appeal form does not cure the deficient oral colloquy (see People v. Dubose, 176 A.D.3d at 859, 107 N.Y.S.3d 869 ; People v. Brown, 122 A.D.3d at 138–139, 992 N.Y.S.2d 297 ). Thus, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.