Opinion
2017–05483 Ind. No. 2298/16
02-06-2019
The PEOPLE, etc., Respondent, v. Victor MENDOZA, Appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERORDERED that the sentence is affirmed.
The defendant pleaded guilty to manslaughter in the first degree. On appeal, the defendant contends that his sentence was excessive. The People argue that the defendant's contention is precluded by the defendant's waiver of his right to appeal.
"A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, the defendant's waiver of his right to appeal was invalid and, therefore, does not preclude appellate review of his excessive sentence claim (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Diasia F., 164 A.D.3d 913, 914, 83 N.Y.S.3d 181 ; People v. Paz, 126 A.D.3d 1011, 3 N.Y.S.3d 615 ; People v. Zaruma, 120 A.D.3d 1273, 991 N.Y.S.2d 884 ). The record on appeal reflects that the defendant executed a written appeal waiver form prior to the Supreme Court explaining the meaning of the right to appeal and the implication of waiving that right. However, the court did not ascertain on the record whether the defendant had actually read the waiver or understood its meaning (see People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Diasia F., 164 A.D.3d at 914, 83 N.Y.S.3d 181 ). Furthermore, in light of the defendant's young age and his minimal prior contact with the criminal justice system, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ).Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
LEVENTHAL, J.P., AUSTIN, ROMAN, MALTESE and CONNOLLY, JJ., concur.