| People v Gil |
| 2013 NY Slip Op 05585 [109 AD3d 484] |
| August 7, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Antonio Gil, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Berry, J.), rendered December 13, 2011, convicting him of criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
In November 2011, the defendant agreed to plead guilty to one count of criminalpossession of a weapon in the second degree, in satisfaction of a multicount indictment.On the day the defendant pleaded guilty, the court told him that a condition of the pleaagreement was that he waive his right to appeal. The court did not, however, explain theright to appeal until the date the defendant was sentenced, more than a month after thedefendant pleaded guilty, and only after the sentence was actually pronounced. Also, thedefendant's written waiver of the right to appeal was executed after the pronouncementof sentence. These circumstances do not establish that the defendant knowingly,voluntarily, and intelligently agreed to waive his right to appeal as a condition of his pleaof guilty. Accordingly, the appeal waiver may not be enforced (see People v Bradshaw, 18NY3d 257, 265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Bouton, 107 AD3d1035, 1036-1037 [2013]).
Nonetheless, the defendant's contention that the sentence violated the EighthAmendment prohibition against cruel and unusual punishment is unpreserved forappellate review (see People v Gonzales, 101 AD3d 1149, 1151 [2012]), and, inany event, is without merit (seePeople v Khan, 89 AD3d 750, 751-752 [2011]). Furthermore, the sentenceimposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon,J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.