Opinion
2017–00763 Ind. No. 789/16
12-26-2018
The PEOPLE, etc., respondent, v. Mauricio FERNANDEZ, appellant.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel; Deanna Russo on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel; Deanna Russo on the memorandum), for respondent.
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Suzanne J. Melendez, J.), imposed June 3, 2016, 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 because the Supreme Court's colloquy conflated the right to appeal with the rights that are automatically forfeited on 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. Cardiello, 164 A.D.3d 1254, 80 N.Y.S.3d 915 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Further, although the defendant executed a written appeal waiver form, the court did not ascertain on the record whether the defendant had signed or read the waiver, or discussed it with defense counsel (see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Cardiello, 164 A.D.3d 1254, 80 N.Y.S.3d 915 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Thus, the waiver does not preclude review of the defendant's excessive sentence claim.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., SGROI, HINDS–RADIX and CHRISTOPHER, JJ., concur.