| People v Guniss |
| 2018 NY Slip Op 02647 [160 AD3d 895] |
| April 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Devonte Guniss, Appellant. |
Seymour W. James, Jr., New York, NY (Allen Fallek of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski ofcounsel; Marielle Burnett 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 March 15, 2016, upon his plea of guilty, on theground that 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 the other trial rights whichare forfeited incident to a plea of guilty (see People v Kupershmidt, 152 AD3d 797, 798 [2017]; People v Burnett-Hicks, 133 AD3d773 [2015]). Moreover, although the Supreme Court indicated that the defendant executed awritten waiver of his right to appeal, the written waiver is not contained in the record on appeal.In any event, the court's colloquy amounted to nothing more than a simple confirmation that thedefendant signed the waiver and a conclusory statement that the defendant understood the waiver(see People v Burnett-Hicks, 133AD3d 773, 774 [2015]; People vBrown, 122 AD3d 133, 140 [2014]). Under the circumstances here, we conclude that therecord does not demonstrate that the defendant knowingly, voluntarily, and intelligently waivedhis right to appeal (see People vJohnson, 157 AD3d 964, 965 [2018]; People v Smith, 156 AD3d 944 [2017]; People v Brown, 122 AD3d 133[2014]).
[*2] Nevertheless, the sentence imposedwas not excessive (see People v Suitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Austin,Miller, Hinds-Radix and Maltese, JJ., concur.