| People v Reyes |
| 2014 NY Slip Op 02463 [116 AD3d 798] |
| April 9, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Reyes, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andMerri Turk Lasky of counsel; Michael Onah on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Queens County (Lasak, J.), imposed May 23, 2012, on the ground that thesentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257, 265 [2011]; People v Callahan, 80 NY2d 273, 283 [1992]) and,thus, does not preclude review of his excessive sentence claim. "A waiver of the right toappeal is effective only so long as the record demonstrates that it was made knowingly,intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]; see People vCalvi, 89 NY2d 868, 871 [1996]). A valid appellate waiver occurs when a defendanthas "a full appreciation of the consequences" of the waiver (People v Seaberg, 74NY2d 1, 11 [1989]). In determining such appreciation, the trial court should " 'assess allof the relevant factors' 'surrounding the waiver, including the nature and terms of theagreement and the age, experience and background of the accused' " (People vBradshaw, 18 NY3d at 264-265, quoting Callahan, 80 NY2d at 280, andPeople v Seaberg, 74 NY2d at 11 [citation omitted]). Moreover, "a written waiver 'isnot a complete substitute for an on-the-record explanation of the nature of the right toappeal, and some acknowledgment that the defendant is voluntarily giving up that right' "(People v Crawford, 110AD3d 916, 916 [2013], lv denied 22 NY3d 1040 [2013], quoting People v Bradshaw, 76 AD3d566, 569 [2010], affd 18 NY3d 257 [2011]; see People v Pelaez, 100 AD3d803, 804 [2012]).
Here, at the time of his plea, the defendant was 21 years old with no prior experiencewith the criminal justice system. Given these facts, the Supreme Court's perfunctory oralcolloquy, which addressed only the defendant's execution of a written waiver of the rightto appeal, did not ensure that he was knowingly, intelligently, and voluntarily waiving hisright to appeal (see People v Bradshaw, 18 NY3d at 264-265).
However, under the circumstances of this case, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Skelos, Leventhaland Sgroi, JJ., concur.