Opinion
2018–07581 Ind. No. 9681/16
03-18-2020
The PEOPLE, etc., Respondent, v. Luis TELLADO, Appellant.
Janet E. Sabel, New York, N.Y. (Iva´n Pantoja of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel; Marielle Burnett on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Iva´n Pantoja of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel; Marielle Burnett on the memorandum), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), imposed May 3, 2018, 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 (see People v. Thomas, 34 N.Y.3d 545, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op. 08545, 2019 WL 6312521 [2019] ). The Supreme Court stated to the defendant that his waiver of the right to appeal meant that "no one [was] going to give [him] an attorney transcript [sic], or any help whatsoever, to appeal," and "[n]o judge or group of judges is going to review anything I have done or any other judge might have done in this case." These statements "utterly ‘mischaracterized the nature of the right a defendant was being asked to cede’ " (People v. Thomas, 34 N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op., *6, quoting People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op., *5). The written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues, and, in any event, the court failed to confirm that the defendant understood the content of the written waiver (see People v. Thomas, 34 N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 N.Y. Slip Op., *6–7). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.