| People v Pacheco |
| 2016 NY Slip Op 03021 [138 AD3d 1035] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robin Pacheco, Appellant. |
Lynn W. L. Fahey, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (William Branigan, John M.Castellano, and Johnnette Traill of counsel; Lorrie A. Zinno on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Queens County (Latella, J.), imposed July 18, 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 understood thedistinction between the right to appeal and other trial rights forfeited incident to his pleaof guilty (see People vGordon, 127 AD3d 1230, 1230 [2015]; People v Cantarero, 123 AD3d 841, 841 [2014]; People v Bennett, 115 AD3d973, 973 [2014]). Furthermore, although the record on appeal reflects that thedefendant executed a written appeal waiver form, the transcript of the plea shows that thecourt did not ascertain on the record whether the defendant had read the waiver ordiscussed it with defense counsel, or whether he was even aware of its contents (see People v Brown, 122AD3d 133, 145 [2014]). Under the circumstances here, we conclude that thedefendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Brown, 122AD3d 133 [2014]; seegenerally People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d737, 738 [2006]; People v Lopez, 6 NY3d at 255).
Nevertheless, contrary to the defendant's contention, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Leventhal,Dickerson, Miller and Duffy, JJ., concur.