Opinion
2016–09592 Ind. No. 10595/15
04-17-2019
The PEOPLE, etc., respondent, v. Chico RIVERA, appellant.
Janet E. Sabel, New York, N.Y. (Eve Kessler of counsel) for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel; Anna Arena on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Eve Kessler of counsel) for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel; Anna Arena on the memorandum), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant did not validly waive his right to appeal. The Supreme Court's oral colloquy suggested that waiving the right to appeal was mandatory rather than a right that the defendant was being asked to give up (see People v. Johnson, 157 A.D.3d 964, 965, 67 N.Y.S.3d 492 ; People v. Bynum, 142 A.D.3d 1183, 37 N.Y.S.3d 904 ). Moreover, the court failed to ascertain on the record whether the defendant read and understood the written waiver or discussed it with his counsel (see People v. Brown, 122 A.D.3d 133, 139, 992 N.Y.S.2d 297 ). Since the defendant's purported appeal waiver was invalid, this Court is not preluded from reviewing 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 ).
The defendant's contention regarding final orders of protection is unpreserved for appellate review because he did not raise the issue at sentencing or move to amend the orders of protection on the ground now raised (see CPL 470.05[2] ; People v. Nieves, 2 N.Y.3d 310, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Perry, 156 A.D.3d 654, 64 N.Y.S.3d 570 ). We decline to review the defendant's contention in the exercise of our interest of justice jurisdiction.
AUSTIN, J.P., LEVENTHAL, COHEN, BARROS and CHRISTOPHER, JJ., concur.