Opinion
2016–08452 Ind. No. 7172/14
02-06-2019
The PEOPLE, etc., Respondent, v. David PAGAN, Appellant.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Marielle Burnett on the memorandum), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid and, thus, does not preclude review of his excessive sentence claim. The Supreme Court's limited colloquy did not ensure that the defendant understood the nature of the right to appeal or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 137–138, 141, 992 N.Y.S.2d 297 ). Moreover, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents (see People v. Santeramo, 153 A.D.3d 1286, 1287, 61 N.Y.S.3d 295 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Under the circumstances here, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ).
Nevertheless, contrary to the defendant's contention, the period of postrelease supervision imposed as part of the sentence 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.