| People v Etienne |
| 2017 NY Slip Op 05841 [152 AD3d 790] |
| July 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nick Etienne, Appellant. |
Lynn W. L. Fahey, New York, NY (Erin R. Tomlinson of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and SolomonNeubort of counsel; Ruby D. Andrade on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Donnelly, J.), imposed October 10, 2013, upon his plea of guilty, on the groundthat the 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 appeal waiver is notvalid unless the defendant's understanding of the waiver is evident on the face of the record (see People v De La Rosa, 148 AD3d927 [2017]; People v Little, 127AD3d 1235 [2015]). Moreover, "[t]he defendant's execution of a written waiver 'is not acomplete substitute for an on-the-record explanation of the nature of the right to appeal, andsome acknowledgment that the defendant is voluntarily giving up that right' " (People v Cuevas-Alcantara, 136 AD3d650, 650 [2016], quoting People vBradshaw, 76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011]). Here, therecord does not demonstrate that the defendant understood the nature of the right to appeal andthe consequences of waiving it (seePeople v Gonzalez, 150 AD3d 1024 [2017]; People v De La Rosa, 148 AD3d 927 [2017]; People v Cuevas-Alcantara, 136 AD3d650 [2016]; People v Little, 127AD3d 1235 [2015]; People vQuezada, 122 AD3d 948 [2014]; People v Brown, 122 AD3d 133 [2014]). The Supreme Court'sstatement that "[i]f you understand the rights you've waived by pleading guilty, if you recognizethat the plea is final and you're satisfied with these proceedings, please sign the waiver of yourright to appeal," was insufficient (seePeople v Gonzalez, 150 AD3d 1024 [2017]; People v Collins, 141 AD3d 729 [2016]). Thus, the waiver does notpreclude review of the defendant's excessive sentence claim (see People v Lopez, 6 NY3dat 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.