Opinion
2014-09-10
The PEOPLE, etc., respondent, v. Desmond SMITH, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Robert Ho on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen 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 (Brennan, J.), imposed January 7, 2013, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was forgoing” (People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; see People v. Pelaez, 100 A.D.3d 803, 804, 954 N.Y.S.2d 554; People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” (People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172; People v. Vasquez, 101 A.D.3d 1054, 956 N.Y.S.2d 171).
Nevertheless, contrary to the defendant's contention, the period of postrelease supervision imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). ENG, P.J., SKELOS, LEVENTHAL, ROMAN and DUFFY, JJ., concur.