Opinion
2017–05554 Ind. No. 1881/16
09-19-2018
The PEOPLE, etc., respondent, v. Odell A. JAMES, appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed April 13, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Vinson, 161 A.D.3d 1109, 73 N.Y.S.3d 905 ; People v. Rosa–Cruz, 159 A.D.3d 837, 69 N.Y.S.3d 840 ) because the record of the colloquy does not demonstrate that the defendant understood the distinction between the rights automatically waived by a plea of guilty and the waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). In addition, there is no indication in the record as to whether the defendant read and understood the written waiver or discussed the written waiver with counsel (see People v. Johnson, 157 A.D.3d 964, 67 N.Y.S.3d 492 ). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.