Opinion
2019–14337 Ind. No. 1634/17
12-06-2023
The PEOPLE, etc., respondent, v. DeAngelo GILL, appellant.
John Healy, Uniondale, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg and Hilda Mortensen of counsel), for respondent.
John Healy, Uniondale, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg and Hilda Mortensen of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered December 4, 2019, convicting him of murder in the second degree and assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The Supreme Court's plea allocution was "insufficient to insure that the defendant grasped the distinction between rights automatically forfeited upon a plea of guilty, and the waiver of the right to appeal, especially in view of the fact that there is no written waiver in the record" ( People v. Ayala, 112 A.D.3d 646, 646, 975 N.Y.S.2d 889 ). Some of the court's statements improperly suggested that waiving the right to appeal was mandatory, rather than a right which the defendant was being asked to voluntarily relinquish (see People v. Pray, 183 A.D.3d 842, 843, 124 N.Y.S.3d 59 ; People v. Guang Chen, 176 A.D.3d 1095, 1095, 108 N.Y.S.3d 874 ; People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). The ambiguity of the court's statements was heightened by the fact that the court itself, rather than the People, demanded an appeal waiver and failed to set forth an adequate reason for such a demand (see People v. Yancey, 204 A.D.3d 1044, 1044, 165 N.Y.S.3d 359 ; see generally People v. Sutton, 184 A.D.3d 236, 244–245, 125 N.Y.S.3d 739 ). Based on the totality of the circumstances, including the defendant's young age, limited education, and lack of experience with the criminal justice system, the record does not establish that the defendant understood the nature of the appellate rights he was waiving (see People v. Eduardo S., 186 A.D.3d 1265, 1268, 129 N.Y.S.3d 483 ; People v. Christopher B., 184 A.D.3d 657, 660, 125 N.Y.S.3d 149 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575 ).
However, the sentence imposed was not excessive (see CPL 470.15[6][b] ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BRATHWAITE NELSON, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.