Opinion
2017–12413 Ind. No. 2710/16
04-03-2019
The PEOPLE, etc., Respondent, v. Gary SANDERS, Appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly 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 sentence is affirmed.
The record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw , 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown , 122 A.D.3d 133, 992 N.Y.S.2d 297 ). The Supreme Court's colloquy improperly suggested that waiving the right to appeal was mandatory, rather than a right that the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Santeramo , 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ; People v. Pelaez , 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). Moreover, the court misstated the law by informing the defendant, in effect, that the appeal waiver would preclude him from challenging the voluntariness of his plea (see People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Pelaez , 100 A.D.3d at 803–804, 954 N.Y.S.2d 554 ).
Although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Brown , 122 A.D.3d at 145, 992 N.Y.S.2d 297 ; see also People v. Santeramo , 153 A.D.3d at 1287, 61 N.Y.S.3d 295 ). Thus, the purported appeal waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive (see People v. Yancy , 165 A.D.3d 711, 85 N.Y.S.3d 98 ; People v. James , 164 A.D.3d 1363, 81 N.Y.S.3d 743 ; People v. Rosa–Cruz , 159 A.D.3d 837, 69 N.Y.S.3d 840 ).
However, the sentence 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.