Opinion
2014–09148 Ind. No. 2579/13
10-24-2018
The PEOPLE, etc., respondent, v. Gregory POSY, appellant.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel) for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni Piplani of counsel; Victoria Randall on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel) for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni Piplani of counsel; Victoria Randall on the memorandum), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Ira H. Margulis, J.), imposed September 17, 2014, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The record does not reflect 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 ). The Supreme Court's colloquy improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish (see People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ). Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights 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. Alston, 163 A.D.3d 843, 81 N.Y.S.3d 167 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ; cf. People v. Sanders, 25 N.Y.3d 337, 339–340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). Although the record reflects that the defendant executed a written appeal waiver form, the 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. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ; see also People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295 ). Under these circumstances, the defendant's purported waiver of his right to appeal was invalid and does not preclude review of his excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.