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People v. Fitzhugh

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Dec 19, 2018
167 A.D.3d 933 (N.Y. App. Div. 2018)

Opinion

2016–09971 Ind.No. 8831/15

12-19-2018

The PEOPLE, etc., Respondent, v. Freddy FITZHUGH, Appellant.

Paul Skip Laisure, New York, NY (Anna Kou of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Seth M. Lieberman of counsel; Ruby D. Andrade on the memorandum), for respondent.


Paul Skip Laisure, New York, NY (Anna Kou of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Seth M. Lieberman of counsel; Ruby D. Andrade 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, Kings County (Martin P. Murphy, J.), imposed September 7, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record of the plea proceeding does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. The Supreme Court, in its waiver colloquy, suggested that the waiver of the right to appeal was mandatory. Further, the court failed to establish on the record that the defendant read and understood the written waiver, or discussed the written waiver with his counsel. Accordingly, the purported waiver of the defendant's right to appeal is not enforceable (see People v. Johnson , 157 A.D.3d 964, 67 N.Y.S.3d 492 ; People v. Simon , 153 A.D.3d 1435, 60 N.Y.S.3d 693 ; People v. Colon , 153 A.D.3d 550, 56 N.Y.S.3d 884 ; People v. Head , 147 A.D.3d 1083, 47 N.Y.S.3d 713 ; People v. Bynum , 142 A.D.3d 1183, 37 N.Y.S.3d 904 ; People v. Burnett–Hicks , 133 A.D.3d 773, 19 N.Y.S.3d 181 ).

Nevertheless, 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.


Summaries of

People v. Fitzhugh

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Dec 19, 2018
167 A.D.3d 933 (N.Y. App. Div. 2018)
Case details for

People v. Fitzhugh

Case Details

Full title:The People of the State of New York, respondent, v. Freddy Fitzhugh…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Dec 19, 2018

Citations

167 A.D.3d 933 (N.Y. App. Div. 2018)
167 A.D.3d 933
2018 N.Y. Slip Op. 8686