| People v Santeramo |
| 2017 NY Slip Op 06465 [153 AD3d 1286] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Santeramo, Appellant. |
Lynn W. L. Fahey, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Merri Turk Lasky of counsel; Marina Kosmetatos on the memorandum), forrespondent.
Appeals by the defendant, as limited by his motion, from two sentences of the SupremeCourt, Queens County (Kron, J.), both imposed February 9, 2016, upon his pleas of guilty, on theground that the sentences were excessive.
Ordered that the sentences are affirmed.
On appeal, the defendant contends that the sentences of imprisonment were excessive. ThePeople argue that the defendant's contentions are precluded by the defendant's waiver of his rightto appeal from the sentences.
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 waivers of his right to appeal were invalid. The Supreme Court's statements at the pleaallocutions improperly suggested that waiving the right to appeal was mandatory rather than aright which the defendant was being asked to voluntarily relinquish, and the court never elicitedan acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v Guarchaj, 122 AD3d878, 879 [2014]; People vAyala, 112 AD3d 646, 646 [2013]; People v Pelaez, 100 AD3d 803, 803 [2012]). Moreover, the recorddoes not demonstrate that the defendant understood the distinction between the right to appealand other trial rights forfeited incident to his pleas of guilty (see People v Black, 144 AD3d 935, 935-936 [2016]; People v Pacheco, 138 AD3d1035, 1036 [2016]; People vGordon, 127 AD3d 1230, 1230 [2015]; People v Cantarero, 123 AD3d 841, 841 [2014]; People v Bennett, 115 AD3d 973,973 [2014]). Furthermore, although the record on appeal reflects that the defendant executedwritten appeal waiver forms, the transcript of the plea proceedings shows that the court did notascertain on the record whether the defendant had read the waivers or discussed them withdefense counsel, or whether he was even aware of their contents (see People v Brown, 122 AD3d133, 145 [2014]; see also People v Black, 144 AD3d at 936; People vPacheco, 138 AD3d at 1036). Under the circumstances here, we conclude that the defendantdid not knowingly, voluntarily, and [*2]intelligently waive hisright to appeal (see People v Brown,122 AD3d 133 [2014]; seegenerally People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738[2006]; People v Lopez, 6 NY3d at 255).
Nevertheless, contrary to the defendant's contention, the sentences imposed were notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Mastro, Miller, LaSalleand Brathwaite Nelson, JJ., concur.