| People v Guarchaj |
| 2014 NY Slip Op 08044 [122 AD3d 878] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Guarchaj, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Jeffrey Dellheim of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andJodi L. Mandel of counsel; Ferdinand Suba, Jr., on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gubbay, J.), rendered April 19, 2013, convicting him of sexual abuse in the first degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the record does not reflect that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18NY3d 257 [2011]). The Supreme Court's statements at the plea allocutionimproperly suggested that waiving the right to appeal was mandatory rather than a rightwhich the defendant was being asked to voluntarily relinquish, and the court neverelicited an acknowledgment that the defendant was voluntarily waiving his right toappeal (see People v Brown, 122 AD3d 133 [2d Dept 2014]; People v Ayala, 112 AD3d646 [2013]; People vPelaez, 100 AD3d 803 [2012]; People v Bradshaw, 76 AD3d 566, 569-570 [2010],affd 18 NY3d 257 [2011]). Moreover, there is no indication in the record that thedefendant understood the distinction between the right to appeal and other trial rights thatare forfeited incident to a plea of guilty (see People v Moyett, 7 NY3d 892, 892-893 [2006];People v Pelaez, 100 AD3d at 803; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]; People v Remington, 90 AD3d678, 679 [2011]). Although the defendant did sign a written waiver of his right toappeal, nothing in the record demonstrates that the document was translated for thedefendant, who required the use of a Spanish language interpreter, before it waspresented to him for signature (see People v Pelaez, 100 AD3d at 803). In anyevent, the court's terse colloquy at the plea allocution, which included the languagesuggesting that the waiver of the right to appeal was mandatory, failed to sufficientlyadvise the defendant of the nature of the right to appeal (see People v Pressley, 116AD3d 794, 795-796 [2014]; People v Salgado, 111 AD3d 859 [2013]; People v Nugent, 109 AD3d625 [2013]). Accordingly, under these circumstances, including the defendant'sinexperience with the criminal justice system (see People v Bradshaw, 18 NY3dat 264-265), the defendant's appeal waiver was invalid (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Pressley, 116 AD3d at 796; People vAyala, 112 AD3d at 646; People v Pelaez, 100 AD3d at 803-804), and doesnot preclude review of his excessive sentence claim.
[*2] However, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Skelos, J.P., Leventhal,Hinds-Radix, Duffy and LaSalle, JJ., concur.