Opinion
2016–09478 Ind. No. 15-00150
06-05-2019
The PEOPLE, etc., Respondent, v. David PHILLIPS, Appellant.
James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant. Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Tina L. Guccione of counsel; Coleen A. Fortes on the brief), for respondent.
James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Tina L. Guccione of counsel; Coleen A. Fortes on the brief), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered May 11, 2016, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid, as the record fails to establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Jones, 158 A.D.3d 775, 68 N.Y.S.3d 769 ; People v. Policastro, 142 A.D.3d 679, 36 N.Y.S.3d 827 ). Although the defendant signed a written waiver of the right to appeal, the Supreme Court did not ascertain on the record whether the defendant had read the waiver, or whether he was aware of its contents (see People v. Rivas, 166 A.D.3d 1019, 1020, 86 N.Y.S.3d 741 ; People v. Daniels, 160 A.D.3d 979, 72 N.Y.S.3d 470 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Moreover, "[t]he court's colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver" ( People v. Guniss, 160 A.D.3d 895, 896, 75 N.Y.S.3d 224 ; see People v. Latham, 162 A.D.3d 1068, 1070, 80 N.Y.S.3d 128 ; People v. Brown, 122 A.D.3d at 140, 992 N.Y.S.2d 297 ). Therefore, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
SCHEINKMAN, P.J., BALKIN, MILLER and HINDS–RADIX, JJ., concur.