Opinion
2017–07277 Ind. No. 212/17
11-28-2018
The PEOPLE, etc., Respondent, v. Andres A. RIVAS, Appellant.
The Legal Aid Society, New York, N.Y. (Justine M. Luongo and Ellen Dille of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
The Legal Aid Society, New York, N.Y. (Justine M. Luongo and Ellen Dille of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed June 6, 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 his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Melendez, 164 A.D.3d 1473, 84 N.Y.S.3d 513 ; People v. James, 164 A.D.3d 1363, 81 N.Y.S.3d 743 ; People v. Kajuan L., 164 A.D.3d 523, 77 N.Y.S.3d 895 ; People v. Bogun, 162 A.D.3d 898, 75 N.Y.S.3d 427 ). Among other deficiencies, the Supreme Court's limited and muddled colloquy did not ensure the defendant's understanding of the distinction between his waiver of the right to appeal and the other rights that are automatically forfeited on a plea of guilty (see People v. Melendez, 164 A.D.3d 1473, 84 N.Y.S.3d 513 ; People v. James, 164 A.D.3d 1363, 81 N.Y.S.3d 743 ; People v. Kajuan L., 164 A.D.3d 523, 77 N.Y.S.3d 895 ; People v. Daniels, 160 A.D.3d 979, 72 N.Y.S.3d 470 ; People v. Waldon, 157 A.D.3d 913, 66 N.Y.S.3d 906 ). Although the record includes a written waiver of the right to appeal signed by the defendant, the court failed to ascertain on the record whether the defendant had read the waiver or whether he was aware of its contents (see People v. James, 164 A.D.3d 1363, 81 N.Y.S.3d 743 ; People v. Kajuan L., 164 A.D.3d 523, 77 N.Y.S.3d 895 ; People v. Daniels, 160 A.D.3d 979, 72 N.Y.S.3d 470 ; People v. Waldon, 157 A.D.3d 913, 66 N.Y.S.3d 906 ). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., SGROI, BARROS and CHRISTOPHER, JJ., concur.