Opinion
2017-01545 Ind. No. 5007/15
07-17-2019
The PEOPLE, etc., Respondent, v. Antonio HIMONITIS, Appellant.
Steven A. Feldman, Uniondale, NY, for appellant. Letitia James, Attorney General, New York, N.Y. (Matthew B. Keller and Michelle Maerov of counsel), for respondent.
Steven A. Feldman, Uniondale, NY, for appellant.
Letitia James, Attorney General, New York, N.Y. (Matthew B. Keller and Michelle Maerov of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (John B. Collins, J.), rendered April 28, 2016, convicting him of criminal sale of a firearm in the first degree, conspiracy in the fourth degree, and criminal possession of a weapon in the second degree (three counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
"A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence" ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Batista, 167 A.D.3d 69, 86 N.Y.S.3d 492 ). 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, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Keene, 160 A.D.3d 897, 71 N.Y.S.3d 895 ; People v. Weber, 153 A.D.3d 946, 58 N.Y.S.3d 868 ). The County Court's colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of the right to appeal and the consequences of waiving it (see People v. Farrell, 169 A.D.3d 919, 919, 94 N.Y.S.3d 164 ). Further, although the defendant signed a written waiver form, the court did not ascertain on the record whether the defendant read the written waiver or was aware of its contents (see People v. Bratton, 165 A.D.3d 693, 693, 82 N.Y.S.3d 738 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Since the defendant's purported waiver of his right to appeal was invalid, this Court is not precluded from reviewing 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 ).
Although the County Court lacked discretion at sentencing to defer the mandatory surcharge (see People v. Jones, 26 N.Y.3d 730, 732–733, 27 N.Y.S.3d 431, 47 N.E.3d 710 ), the court's error in this regard, which was in the defendant's favor, does not entitle him to the relief he seeks (see People v. Tietje, 171 A.D.3d 1221, 1222, 96 N.Y.S.3d 878 ; People v. Rodriguez, 162 A.D.3d 513, 514, 74 N.Y.S.3d 856 ).
BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.