Opinion
2016–12701 Ind.No. 2711/15
10-16-2019
The PEOPLE, etc., Respondent, v. ROMELO P. (Anonymous), Appellant.
Paul Skip Laisure, New York, N.Y. (David L. Goodwin of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni Piplani of counsel; Kristin Rainis on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (David L. Goodwin of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Roni Piplani of counsel; Kristin Rainis on the memorandum), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the sentence is affirmed.
The defendant pleaded guilty to robbery in the first degree. He was adjudicated a youthful offender and sentenced to a period of probation. On appeal, the defendant contends that his sentence was excessive. The People counter, among other things, that the defendant's contention is precluded by his appeal waiver.
A waiver of the right to appeal is effective if the record demonstrates that it was made knowingly, intelligently, and voluntarily (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, the defendant's purported waiver of his right to appeal was invalid and, therefore, does not preclude appellate review of his excessive sentence claim (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Mendoza, 169 A.D.3d 717, 91 N.Y.S.3d 697 ; People v. Diasia F., 164 A.D.3d 913, 914, 83 N.Y.S.3d 181 ). In particular, although the record on appeal reflects that the defendant executed a written appeal waiver form, the Supreme Court did not ascertain on the record whether the defendant had actually read the waiver (see People v. Mendoza, 169 A.D.3d 717, 91 N.Y.S.3d 697 ; People v. Diasia F., 164 A.D.3d at 914, 83 N.Y.S.3d 181 ). Further, in light of the defendant's young age and inexperience with the criminal justice system, the relatively terse and confusing oral colloquy was insufficient to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Mendoza, 169 A.D.3d 717, 91 N.Y.S.3d 697 ; People v. Diasia F., 164 A.D.3d at 914, 83 N.Y.S.3d 181 ).
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., COHEN, BARROS and CONNOLLY, JJ., concur.