| People v Medina |
| 2018 NY Slip Op 03151 [161 AD3d 778] |
| May 2, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jordan Medina, Appellant. |
Seymour W. James, Jr., New York, NY (Whitney A. Robinson of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Terrence Heller ofcounsel; Aleena R. Peerzada on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Martin Murphy, J.), imposed April 1, 2016, upon his plea of guilty, on the groundthat the sentence was excessive.
Ordered that the sentence is affirmed.
On appeal, the defendant contends that his sentence of 2
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.
A waiver of the right to appeal "is effective only so long as the record demonstrates that itwas made knowingly, intelligently and voluntarily" (id. at 256; see People v Bradshaw, 18 NY3d257, 264 [2011]; People vBrown, 122 AD3d 133, 136 [2014]). Although the Court of Appeals has "repeatedlyobserved that there is no mandatory litany that must be used in order to obtain a valid waiver ofappellate rights" (People v Johnson,14 NY3d 483, 486 [2010]), "[t]he best way to ensure that the record reflects that the right isknown and intentionally relinquished by the defendant is to fully explain to the defendant, on therecord, the nature of the right to appeal and the consequences of waiving it" (People vBrown, 122 AD3d at 142; seePeople v Rocchino, 153 AD3d 1284 [2017]; People v Blackwood, 148 AD3d 716, 716 [2017]). "[A] thoroughexplanation should include an advisement that, while a defendant ordinarily retains the right toappeal even after he or she pleads guilty, the defendant is being asked, as a condition of the pleaagreement, to waive that right" (People v Brown, 122 AD3d at 144).
Here, the record does not demonstrate that the defendant understood the distinction [*2]between the right to appeal and other trial rights forfeited incidentto his plea of guilty (see People vSanteramo, 153 AD3d 1286 [2017]; 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 AD3d at 145; see also People vSanteramo, 153 AD3d 1286 [2017]; People v Black, 144 AD3d at 936;People v Pacheco, 138 AD3d at 1036). Under the circumstances here, we conclude thatthe defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Brown, 122 AD3d133 [2014]; see generally People vBradshaw, 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 sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Dillon, Miller, Hinds-Radixand Iannacci, JJ., concur.