| People v Smith |
| 2014 NY Slip Op 06112 [120 AD3d 1270] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Desmond Smith, Appellant. |
Lynn W. L. Fahey, New York, N.Y., for appellant.
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 (Brennan, J.), imposed January 7, 2013, on the ground that thesentence was excessive.
Ordered that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court'sinterest of justice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d248, 255 [2006]). Here, however, this Court is not precluded from exercising itsinterest of justice jurisdiction because the defendant's purported waiver of his right toappeal was invalid. The record does not demonstrate that the defendant "grasped theconcept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d257, 267 [2011]; see Peoplev Pelaez, 100 AD3d 803, 804 [2012]; People v Jacob, 94 AD3d 1142, 1143 [2012]; cf. People v Ramos, 7 NY3d737, 738 [2006]). Therefore, "notwithstanding the written appeal waiver form, itcannot be said that defendant knowingly, intelligently and voluntarily waived his right toappeal" (People v Bradshaw, 18 NY3d at 267; see People v Elmer, 19 NY3d501, 510 [2012]; People vVasquez, 101 AD3d 1054 [2012]).
Nevertheless, contrary to the defendant's contention, the period of postreleasesupervision imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Eng, P.J., Skelos, Leventhal, Roman and Duffy, JJ., concur.