| People v Ayala |
| 2013 NY Slip Op 08094 [112 AD3d 646] |
| December 4, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Pedro Ayala, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andLaura T. Ross of counsel; James Rodriguez on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Queens County (Hanophy, J.), imposed August 17, 2010, on the ground that thesentence was excessive.
Ordered that the sentence is affirmed.
"When a trial court characterizes an appeal as one of the many rights automaticallyextinguished upon entry of a guilty plea," a waiver of the right to appeal is invalid (People v Lopez, 6 NY3d248, 256 [2006]). In the instant case, although the right to appeal was discussedseparately from the other rights the defendant was forfeiting by pleading guilty, thequestion "you're going to have to waive your right to appeal both the plea and thesentence. Do you understand that?" was insufficient to insure that the defendant graspedthe distinction between rights automatically forfeited upon a plea of guilty, and thewaiver of the right to appeal, especially in view of the fact that there is no written waiverin the record (see People vNorfort, 101 AD3d 756 [2012]; cf. People v Ramos, 7 NY3d 737, 738 [2006]; People v Jefferson, 104 AD3d875 [2013]). Accordingly, the defendant's purported waiver of his right to appealwas invalid, and does not preclude review of his excessive sentence claim.
However, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Eng, P.J., Skelos, Roman, Cohen and Hinds-Radix, JJ., concur.