Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Miguel VASQUEZ, appellant.
Steven Banks, New York, N.Y. (Joanne Legano Ross of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Victoria Sypniewski on the memorandum), for respondent.
Steven Banks, New York, N.Y. (Joanne Legano Ross of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel; Victoria Sypniewski on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a sentence of the Supreme Court, Kings County (DiMango, J.), imposed January 22, 2010, on the ground that the sentence is 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, the Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. Although “ ‘a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court ‘must make certain that a defendant's understanding’ of the waiver ... is evident on the face of the record' ” ( People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that “the record demonstrates that [the waiver] was made knowingly, intelligently and voluntarily” ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, the Supreme Court stated: “Please sign the waiver of right [sic] to appeal if you agree with what we are doing here,” and asked the defendant, who responded in the affirmative, whether he had signed the waiver freely, voluntarily, and because he understood what it meant. The court did not confirm that the defendant discussed the written waiver with his counsel or that “he was aware of its contents” ( People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). This record discussion does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was foregoing” ( People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;see People v. Grant, 83 A.D.3d 862, 862–863, 921 N.Y.S.2d 285;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. Callahan, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108;People v. Grant, 83 A.D.3d at 862–863, 921 N.Y.S.2d 285).
Nevertheless, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).