Opinion
05-17-2017
The PEOPLE, etc., respondent, v. Amari Jenkins GONZALEZ, appellant.
Lynn W.L. Fahey, New York, NY (Leila Hull of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Diane Eisner of counsel; Robert Ho on the memorandum), for respondent.
Lynn W.L. Fahey, New York, NY (Leila Hull of counsel), for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Diane Eisner of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Miller, J.), imposed January 30, 2014, 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, as the record fails to establish that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ; People v. Bradshaw, 18 N.Y.3d 257, 272–273, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). " ‘An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record’ " (People v. De La Rosa, 148 A.D.3d 927, 48 N.Y.S.3d 606, quoting People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896 ). The record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. De La Rosa, 148 A.D.3d 927, 48 N.Y.S.3d 606 ; People v. Cuevas–Alcantara, 136 A.D.3d 650, 23 N.Y.S.3d 902 ; People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896 ; People v. Quezada, 122 A.D.3d 948, 997 N.Y.S.2d 475 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). Moreover, "[t]he defendant's execution of a written waiver ‘is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right’ " (People v. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902, quoting People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Here, the Supreme Court's statement that "because of our agreement today ... the case is now final," followed by a simple confirmation that the defendant signed and understood the waiver, was insufficient (see People v. Collins, 141 A.D.3d 729, 35 N.Y.S.3d 656 ). Thus, the waiver does not preclude review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
ENG, P.J., DILLON, SGROI, MALTESE and BARROS, JJ., concur.