| People v Fowler |
| 2013 NY Slip Op 07986 [111 AD3d 958] |
| November 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darryl A. Fowler, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel;Phillip Scholz on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R.Doyle, J.), rendered June 28, 2011, convicting him attempted murder in the seconddegree, assault in the first degree, burglary in the first degree, criminal use of a firearm inthe first degree, criminal possession of a weapon in the second degree, aggravatedcriminal contempt, criminal contempt in the first degree, and criminal contempt in thesecond degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not improperlydelegate the appeal waiver allocution to the prosecutor (see People v Bethune, 91AD3d 966, 966-967 [2012]). However, we find that the defendant's purportedwaiver of his right to appeal was invalid. The record does not demonstrate that thedefendant "grasped the concept of the appeal waiver and the nature of the right he wasforgoing" (People vBradshaw, 18 NY3d 257, 267 [2011]; People v Springer, 109 AD3d 557, 557 [2013] [internalquotation marks omitted]; seePeople v Grant, 83 AD3d 862, 862-863 [2011]). Therefore, "notwithstandingthe written appeal waiver form, it cannot be said that defendant knowingly, intelligentlyand voluntarily waived his right to appeal" (People v Bradshaw, 18 NY3d at 267;see People v Elmer, 19NY3d 501, 510 [2012]; People v Vasquez, 101 AD3d 1054, 1055 [2012]; cf. People v Ramos, 7 NY3d737, 738 [2006]). Thus, the defendant is not precluded from challenging hissentence as excessive. Nevertheless, the sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]). Angiolillo, J.P., Hall, Roman and Cohen, JJ.,concur.