Opinion
2017–12743 S.C.I. No. 10221/17
06-05-2019
The PEOPLE, etc., Respondent, v. Jamal PINCHBACK, Appellant.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel; Kristin Rainis on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel; Kristin Rainis on the memorandum), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Suzanne Melendez, J.), imposed October 19, 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 the right to appeal was invalid, as the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v. Fernandez, 167 A.D.3d 1038, 88 N.Y.S.3d 912 ; People v. Johnson, 165 A.D.3d 702, 82 N.Y.S.3d 735 ; People v. Glover, 164 A.D.3d 1259, 80 N.Y.S.3d 916 ; People v. Cardiello, 164 A.D.3d 1254, 80 N.Y.S.3d 915 ). Moreover, the Supreme Court failed to provide the defendant with an adequate explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Alston, 163 A.D.3d 843, 81 N.Y.S.3d 167 ; People v. Etienne, 152 A.D.3d 790, 59 N.Y.S.3d 427 ). Further, the transcript of the plea proceeding shows that the court did not ascertain on the record whether the defendant had read the written waiver or whether he was even aware of its contents (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ; People v. Cambridge, 145 A.D.3d 795, 795–796, 44 N.Y.S.3d 96 ). Accordingly, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and thus, the waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Dixon, 163 A.D.3d 988, 989, 81 N.Y.S.3d 186 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.