| People v Kupershmidt |
| 2017 NY Slip Op 05850 [152 AD3d 797] |
| July 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Boris Kupershmidt, Appellant. |
Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J.Dennehy of counsel; Johanna Carmona on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Murphy, J.), imposed December 4, 2015, upon his plea of guilty, on the groundthat the sentence was excessive.
Ordered that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest ofjustice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d 248, 255 [2006]). Here, however, thisCourt is not precluded from exercising its interest of justice jurisdiction because the defendant'spurported waiver of his right to appeal was invalid. The record does not demonstrate that thedefendant understood the distinction between the right to appeal and other trial rights forfeitedincident to his plea of guilty (see Peoplev Black, 144 AD3d 935, 935-936 [2016]; People v Pacheco, 138 AD3d 1035, 1036 [2016]; People v Gordon, 127 AD3d 1230,1230 [2015]; People v Cantarero,123 AD3d 841, 841 [2014]; Peoplev Bennett, 115 AD3d 973, 973 [2014]). Nor does the record demonstrate that thedefendant otherwise understood the nature of the right to appeal (cf. People v Brown, 122 AD3d133, 144 [2014]). Furthermore, although the defendant executed a written appeal waiverform, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on therecord whether the defendant had read the waiver or discussed it with defense counsel, orwhether he was even aware of its contents (see People v Brown, 122 AD3d at 145;see also People v Black, 144 AD3d at 936; People v Pacheco, 138 AD3d at1036). Under the circumstances here, we conclude that the defendant did not knowingly,voluntarily, and intelligently waive his right to appeal (see People v Brown, 122 AD3d 133 [2014]; see generally People v Bradshaw, 18NY3d 257, 264-267 [2011]; Peoplev Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d at 255).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Leventhal, Sgroi, Cohen and Miller,JJ., concur.