Opinion
2017–11019 Ind. No. 1318/17
04-03-2019
The PEOPLE, etc., Respondent, v. Tara DIAZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Sean Nuttall of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Sean Nuttall of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Peter Vallone, J.), imposed July 26, 2017, 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. The Supreme Court's colloquy improperly suggested that waiving the right to appeal was mandatory, rather than a right the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving her right to appeal (see People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ; People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372 ). Moreover, the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v. Hong Mo Lin, 163 A.D.3d 849, 79 N.Y.S.3d 656 ; People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295 ). Furthermore, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether she was even aware of its content (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ; People v. Cambridge, 145 A.D.3d 795, 795–796, 44 N.Y.S.3d 96 ). Under these circumstances, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive her right to appeal (see People v. Bradshaw, 18 N.Y.3d at 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Pierre, 165 A.D.3d 1175, 1175, 84 N.Y.S.3d 783 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
AUSTIN, J.P., LEVENTHAL, COHEN, BARROS and CHRISTOPHER, JJ., concur.