Opinion
2013-11408 Ind. No. 10333/11.
02-03-2016
The PEOPLE, etc., respondent, v. Carlos CUEVAS–ALCANTARA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy E. Linn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Michael O'Connell on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy E. Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel; Michael O'Connell on the memorandum), for respondent.
Opinion
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Mullings, J.), imposed February 13, 2013, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the record fails to establish that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 272–273, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896; People v. Quezada, 122 A.D.3d 948, 997 N.Y.S.2d 475; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297). The record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Cantarero, 123 A.D.3d 841, 842, 996 N.Y.S.2d 724; People v. Brown, 122 A.D.3d at 140, 992 N.Y.S.2d 297). The defendant's execution of a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” (People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645; see People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297).
Nevertheless, 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).
ENG, P.J., DILLON, SGROI, HINDS–RADIX and BARROS, JJ., concur.