Opinion
2017–09004 S.C.I. No. 10087/17
02-06-2019
The PEOPLE, etc., Respondent, v. Domingo A. DEJESUS, Appellant.
Janet E. Sabel, New York, N.Y. (Heidi Bota of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel; Kristin Rainis on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Heidi Bota of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel; Kristin Rainis on the memorandum), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid and, thus, does not preclude review of his excessive sentence claim (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The Supreme Court failed to adequately explain the nature of the right to appeal, and the court's colloquy conflated the right to appeal with the rights that are automatically forfeited upon a plea of guilty (see People v. Johnson, 165 A.D.3d 702, 82 N.Y.S.3d 735 ; People v. Glover, 164 A.D.3d 1259, 80 N.Y.S.3d 916 ; People v. Brown, 122 A.D.3d 133, 137–138, 141, 992 N.Y.S.2d 297 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Moreover, although the defendant executed a written appeal waiver form, the court did not ascertain on the record whether the defendant read the waiver or discussed it with defense counsel, or whether he was aware of its contents (see People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Under these circumstances, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see id. at 145, 992 N.Y.S.2d 297 ).
Nevertheless, 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.