Opinion
2017–13243 Ind. No. 1531/17
04-03-2019
The PEOPLE, etc., Respondent, v. Miguel FONTANEZ, Appellant.
Paul Skip Laisure, New York, N.Y. (David L. Goodwin 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. (David L. Goodwin 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.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERAppeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed November 29, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Although the Supreme Court correctly described the defendant as waiving the right to appeal "in consideration" for "this disposition," other statements made by the court at the plea allocution improperly suggested that the waiver of the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish (see People v. Waldon, 157 A.D.3d 913, 913, 66 N.Y.S.3d 906 ; People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ; People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). The court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Rodriguez, 167 A.D.3d 662, 86 N.Y.S.3d 895 ; People v. Waldon, 157 A.D.3d at 913, 66 N.Y.S.3d 906 ; People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295 ). The record also 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. Rodriguez, 167 A.D.3d 662, 86 N.Y.S.3d 895 ; People v. Rivas, 166 A.D.3d 1019, 1020, 86 N.Y.S.3d 741 ; People v. Waldon, 157 A.D.3d at 913–914, 66 N.Y.S.3d 906 ). The court also misstated the law by informing the defendant, in effect, that the appeal waiver would preclude him from challenging the voluntariness of his plea (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Waldon, 157 A.D.3d at 914, 66 N.Y.S.3d 906 ; People v. Pelaez, 100 A.D.3d at 803–804, 954 N.Y.S.2d 554 ).
Moreover, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Waldon, 157 A.D.3d at 914, 66 N.Y.S.3d 906 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Thus, the defendant's purported waiver of his right to appeal does not preclude appellate review of his contention that the sentence imposed was excessive.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.