People v. Rodriguez

167 A.D.3d 662

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

The PEOPLE, etc., Respondent,

v.Hector RODRIGUEZ, Appellant.

2017-07312

Ind. No. 2752/16

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

Submitted—October 31, 2018

December 5, 2018

Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William Branigan of counsel; Lorrie A. Zinno on the memorandum), for respondent.

RUTH C. BALKIN, J.P., SANDRA L. SGROI, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J., at plea; Charles S. Lopresto, J., at sentence), imposed April 11, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Contrary to the People's contention, the record does not reflect 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 ). At the plea allocution, the Supreme Court improperly suggested that waiving the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Waldon, 157 A.D.3d 913, 913–914, 66 N.Y.S.3d 906 ; People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). Moreover, the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v. Waldon, 157 A.D.3d at 913–914, 66 N.Y.S.3d 906 ; People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ). Additionally, the court misstated the law by informing the defendant, in effect, that the appeal waiver would preclude him from challenging the voluntariness of his plea (see People v. Waldon, 157 A.D.3d at 914, 66 N.Y.S.3d 906 ; People v. Pelaez, 100 A.D.3d at 803–804, 954 N.Y.S.2d 554 ). Although the defendant signed a written waiver of the right to appeal, the court never elicited from the defendant on the record that he read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Waldon, 157 A.D.3d at 914, 66 N.Y.S.3d 906 ; see also People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Accordingly, the defendant's purported waiver of his right to appeal was invalid and, thus, does not preclude review of his excessive sentence claim (see People v. Vinson, 161 A.D.3d 1109, 73 N.Y.S.3d 905 ; People v. Waldon, 157 A.D.3d 913, 66 N.Y.S.3d 906 ; People v. Chestnut, 142 A.D.3d 559, 36 N.Y.S.3d 396 ; People v. Whitney, 125 A.D.3d 795, 999 N.Y.S.2d 899 ; People v. Baley, 114 A.D.3d 959, 980 N.Y.S.2d 811 ; People v. Rivera, 110 A.D.3d 835, 971 N.Y.S.2d 897 ; People v. Burnett, 103 A.D.3d 662, 958 N.Y.S.2d 623 ; People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ).

Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90...