Opinion
2018–04850 S.C.I. No. 435/18
10-09-2019
The PEOPLE, etc., Respondent, v. Laiquan E. DUBOSE, Appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel; Victoria Randall on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel; Victoria Randall 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 8, 2018, 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 and does not preclude appellate review of his excessive sentence claim. 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 (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 ). Additionally, although the defendant signed a written waiver of the right to appeal, "a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" ( 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 ). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ).
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.