| People v Gonzalez |
| 2017 NY Slip Op 03966 [150 AD3d 1024] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Amari Jenkins Gonzalez, Appellant. |
Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Diane Eisnerof counsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Miller, J.), imposed January 30, 2014, upon his plea of guilty, on the ground thatthe sentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the record fails toestablish that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v Maracle, 19 NY3d925, 927-928 [2012]; People vBradshaw, 18 NY3d 257, 272-273 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]). " 'An appealwaiver is not valid unless the defendant's understanding of the waiver is evident on the face ofthe record' " (People v De LaRosa, 148 AD3d 927 [2017], quoting People v Little, 127 AD3d 1235 [2015]). The record does notdemonstrate that the defendant understood the nature of the right to appeal and the consequencesof waiving it (see People v De LaRosa, 148 AD3d 927 [2017]; People v Cuevas-Alcantara, 136 AD3d 650 [2016]; People v Little, 127 AD3d 1235[2015]; People v Quezada, 122AD3d 948 [2014]; People vBrown, 122 AD3d 133 [2014]). Moreover, "[t]he defendant's execution of a writtenwaiver 'is not 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 Cuevas-Alcantara, 136 AD3d at 650, quoting People v Bradshaw, 76 AD3d 566,569 [2010], affd 18 NY3d 257 [2011]). Here, the Supreme Court's statement that"because of our agreement today . . . the case is now final," followed by a simpleconfirmation that the defendant signed and understood the waiver, was insufficient (see People v Collins, 141 AD3d729 [2016]). Thus, the waiver does not preclude review of the defendant's excessivesentence claim (see People v Lopez, 6 NY3d at 257).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Dillon, Sgroi, Maltese and Barros,JJ., concur.