Opinion
2015-08-19
The PEOPLE, etc., respondent, v. Randolph GEORGE, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Robert Ho on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (D'Emic, J.), imposed July 3, 2013, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty ( see People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554; People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627; People v. Mayo, 77 A.D.3d 683, 683–684, 908 N.Y.S.2d 353; People v. Olivier, 48 A.D.3d 486, 486, 849 N.Y.S.2d 790; cf. People v. Sanders, 25 N.Y.3d 337). Furthermore, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding does not show that the defendant understood “the nature of the right to appeal and the consequences of waiving it” when he executed the written waiver (People v. Brown, 122 A.D.3d 133, 142, 992 N.Y.S.2d 297). Under the circumstances of this case, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal ( see id.; see generally People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344; People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). ENG, P.J., BALKIN, CHAMBERS, SGROI and MILLER, JJ., concur.