Opinion
03-15-2017
The PEOPLE, etc., respondent, v. Ana DE LA ROSA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel; Jacob Wells on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel; Jacob Wells on the memorandum), for respondent.
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Buchter, J.), imposed September 4, 2012, 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 her right to appeal was invalid, as the record fails to establish that she knowingly, voluntarily, and intelligently waived her 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. Cuevas–Alcantara, 136 A.D.3d 650, 23 N.Y.S.3d 902 ; 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 ). "An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record" (People v. Little, 127 A.D.3d at 1235, 5 N.Y.S.3d 896 ; see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). 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. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902; People v. Cantarero, 123 A.D.3d 841, 842, 996 N.Y.S.2d 724 ). Moreover, 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. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902, quoting People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93 ; see 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, MILLER and BRATHWAITE NELSON, JJ., concur.