People v. Deas

172 A.D.3d 1400

98 N.Y.S.3d 895 (Mem)

The PEOPLE, etc., Respondent,

v.Todd DEAS, Appellant.

2017–10217

(Ind. No. 8839/16)

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 27, 2019

May 29, 2019

Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel; Marielle Burnett on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Dena E. Douglas, J.), imposed August 8, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw , 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The Supreme Court's terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of the right to appeal and the consequences of waiving it (see

People v. Farrell , 169 A.D.3d 919, 920, 94 N.Y.S.3d 164 ). Although the defendant signed a written waiver form, the transcript of the plea proceeding reveals that instead of ascertaining on the record whether the defendant read the written waiver and was aware of its contents, the court deferred to the defense counsel's statements about counsel's off-the-record conversation with the defendant regarding the written waiver (see

People v. Brown , 122 A.D.3d 133, 140–141, 145, 992 N.Y.S.2d 297 ).

However, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

MASTRO,...