| People v Waldon |
| 2018 NY Slip Op 00445 [157 AD3d 913] |
| January 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Waldon, Appellant. |
Paul Skip Laisure, New York, NY (Nao Terai of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher Blira-Koessler of counsel; Lorrie A. Zinno on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Barry Kron, J.), imposed January 13, 2016, upon his plea of guilty, on theground that the sentence is 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 reviewing the sentence because the defendant's purported waiver ofhis right to appeal was invalid. During the plea allocution, the Supreme Court incorrectlyinformed the defendant that "by giving up the right to appeal you will be able to challenge anylegal rulings in the case, such as suppression issues or excessive sentence." Moreover, theSupreme Court's statements improperly suggested that the waiver of the right to appeal wasmandatory rather than a right that the defendant was being asked to voluntarily relinquish, andthe court never elicited an acknowledgment that the defendant was voluntarily waiving his rightto appeal (see People v Santeramo,153 AD3d 1286, 1286 [2017]; People v Pelaez, 100 AD3d 803, 803 [2012]). In addition, therecord does not demonstrate that the defendant understood the distinction between the right toappeal and other trial rights forfeited incident to his plea of guilty (see People vSanteramo, 153 AD3d at 1286-1287; People v Pacheco, 138 AD3d 1035, 1036 [2016]). Furthermore, thecourt misstated the law by informing the defendant, in effect, that the appeal waiver wouldpreclude him from challenging the voluntariness of his plea (see People v Seaberg, 74NY2d 1, 10 [1989]; People v Pelaez, 100 AD3d at 803-804).
Although the record on appeal reflects that the defendant executed a written appeal waiverform, the transcript of the plea proceedings shows that the Supreme Court did not ascertain onthe record whether the defendant had read the waiver, discussed it with counsel, or was evenaware of its contents (see People v Callahan, 80 NY2d 273, 283 [1992]; People vSanteramo, 153 AD3d at 1287; People v Pacheco, 138 AD3d at 1036; People v Brown, 122 AD3d 133,145 [2014]). 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 generallyPeople v Bradshaw, [*2]18 NY3d 257, 264-267 [2011];People v Lopez, 6 NY3d at 255).
Nevertheless, the sentence imposed is not excessive (see People v Suitte, 90 AD2d80 [1982]). Chambers, J.P., Sgroi, Maltese and Connolly, JJ., concur.