| People v Pressley |
| 2014 NY Slip Op 02461 [116 AD3d 794] |
| April 9, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerrard Pressley, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andLinda Breen of counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Kings County (DiMango, J.), imposed May 23, 2012, on the ground that thesentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid. "A waiver of theright to appeal is effective only so long as the record demonstrates that it was madeknowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Callahan, 80 NY2d 273, 280 [1992]). "'Though a trial court need not engage in any particular litany' or catechism in satisfyingitself that a defendant had entered a knowing, intelligent and voluntary appeal waiver, atrial court 'must make certain that a defendant's understanding' of the waiver. . . is evident on the face of the record" (People v Bradshaw, 18NY3d at 265, quoting People v Lopez, 6 NY3d at 256; see People vCallahan, 80 NY2d at 280). Further, it must be made clear to the defendant that anappeal waiver " 'is separate and distinct from those rights automatically forfeited upon aplea of guilty' " (People v Bradshaw, 18 NY3d at 264, quoting People vLopez, 6 NY3d at 256). "A detailed written waiver can supplement a court'son-the-record explanation of what a waiver of the right to appeal entails, but a writtenwaiver 'does not, standing alone, provide sufficient assurance that the defendant isknowingly, intelligently and voluntarily giving up his or her right to appeal as a conditionof the plea agreement' " (Peoplev Keiser, 100 AD3d 927, 928 [2012], quoting People v Bradshaw, 76 AD3d566, 569 [2010], affd 18 NY3d 257 [2011]; see People v Elmer, 19 NY3d501, 510 [2012]; People vCrawford, 110 AD3d 916 [2013], lv denied 22 NY3d 1040 [2013]; People v Vasquez, 101 AD3d1054 [2012]).
Here, although the defendant executed a written waiver of his right to appeal, thedefendant's understanding of the appeal waiver is not evident on the face of the recorddue to the deficiency of the oral colloquy conducted by the Supreme Court in light of theabsence of any mention of the waiver during the discussion of the terms of the plea. Afterthe plea agreement had been reached, the court told the defendant that "[b]efore I acceptyour plea, you need to sign a waiver of your right to appeal." First, the court's "tersecolloquy [which included this mandatory-sounding [*2]language] at the plea allocution failed to sufficiently advisethe defendant of the nature of his right to appeal" (People v Salgado, 111 AD3d 859, 859 [2013]; People v Nugent, 109 AD3d625, 625 [2013]). Second, the court suggested that the right to appeal isautomatically forfeited upon pleading guilty when it advised the defendant that thewritten appeal waiver "tells me you understand the rights you have waived by pleadingguilty" (see People v Lopez, 6 NY3d at 256-257). Accordingly, under thesecircumstances, including the defendant's relative inexperience with the criminal justicesystem (see People v Bradshaw, 18 NY3d at 264-265), the defendant's appealwaiver was invalid (see People v Lopez, 6 NY3d at 256-257; People v Ayala, 112 AD3d646 [2013]; People vPelaez, 100 AD3d 803 [2012]; see also People v Salgado, 111 AD3d 859 [2013];People v Nugent, 109 AD3d at 625-626), and does not preclude review of hisexcessive sentence claim.
However, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Eng, P.J., Skelos, Leventhal and Roman, JJ., concur.