Opinion
2016–12170 Ind. No. 1214/15
04-10-2019
The PEOPLE, etc., Respondent, v. Jason POINTDUJOUR, Appellant.
Paul Skip Laisure, New York, N.Y. (Michael Anthus of counsel), for appellant. Richard A. Brown, 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. (Michael Anthus of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni C. Piplani of counsel; Kristin Rainis on the memorandum), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Queens County (Deborah Stevens–Modica, J., at plea and sentence; Douglas Wong, J., at resentence), imposed October 27, 2016, on the ground that the resentence was excessive.
ORDERED that the resentence is affirmed.
The defendant's purported waiver of his 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. Hong Mo Lin, 163 A.D.3d 849, 79 N.Y.S.3d 656 ; People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ). 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, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that the court did not ascertain on the record whether the defendant had read the waiver or whether he was even aware of its content (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 at 1287, 61 N.Y.S.3d 295 ; People v. Cambridge, 145 A.D.3d 795, 795–796, 44 N.Y.S.3d 96 ). Finally, the court "never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal" ( People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295 ). 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 resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
AUSTIN, J.P., LEVENTHAL, COHEN, BARROS and CHRISTOPHER, JJ., concur.