| People v Johnson |
| 2018 NY Slip Op 00567 [157 AD3d 964] |
| January 31, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Johnson, Appellant. |
Paul Skip Laisure, New York, NY (Dina Zloczower of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel; 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 (Martin P. Murphy, J.), imposed November 16, 2015, upon his plea of guilty, onthe ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant was convicted of criminal possession of a weapon in the third degree upon hisplea of guilty and sentenced, in accordance with the plea agreement, to an indeterminate term ofimprisonment of three to six years. The defendant contends that his sentence was excessive, andseeks a reduction in the interest of justice. The People argue, among other things, that review ofthe defendant's sentence is foreclosed by his appeal waiver.
"A waiver of the right to appeal is effective only so long as the record demonstrates that itwas made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d257, 264 [2011]; People vBrown, 122 AD3d 133, 136 [2014]). Here, the record of the plea proceeding did notdemonstrate that the defendant knowingly, voluntarily, and intelligently waived his right toappeal. The Supreme Court, after inquiring of counsel whether the defendant had executed awritten waiver, advised the defendant: "[Y]ou have just executed the waiver of appeal. And bydoing so, you have given up your right to appeal, which means there will be no appeal withregards to anything in your case." Instead of ascertaining whether the defendant had made aknowing, voluntary, and intelligent choice to waive his right to appeal as a condition of his plea,the court merely informed the defendant that he had already waived his right to appeal byexecuting the appeal waiver and then confirmed that the defendant understood this establishedfact. "[A] defendant does not validly waive his or her right to appeal where the colloquy suggeststhat 'waiving the right to appeal [is] mandatory rather than a right which the defendant [is] beingasked to voluntarily relinquish' " (People v Brown, 122 AD3d at 137, quoting People v Pelaez, 100 AD3d 803,803 [2012]). Moreover, the court failed to establish on the record that the defendant read andunderstood the written waiver, or discussed the waiver with his counsel (see People v Elmer, 19 NY3d 501,510 [2012]; People v Callahan, 80 NY2d 273, 283 [1992]; People v Brown, 122AD3d at 139). Under these circumstances, the purported waiver of the defendant's right to appealis not enforceable (see [*2]People v Simon, 153 AD3d 1435 [2017]; People v Colon, 153 AD3d 550[2017]; People v Head, 147 AD3d1083 [2017]; People v Bynum,142 AD3d 1183 [2016]; People vBurnett-Hicks, 133 AD3d 773 [2015]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]). Chambers, J.P., Sgroi, Maltese and Connolly, JJ., concur.