| People v Dixon |
| 2018 NY Slip Op 05485 [163 AD3d 988] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Dixon, Appellant. |
The Legal Aid Society, New York, NY (Laura Boyd of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Christopher J. Blira-Koessler of counsel; Victoria Randall on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from an amended sentence of theSupreme Court, Queens County (Douglas Wong, J.), imposed September 6, 2016, revoking asentence of probation previously imposed by the same court (John Zoll, J.), upon a finding thathe violated conditions thereof, upon his admission, and imposing a sentence of imprisonmentupon his previous conviction of attempted criminal possession of a forged instrument in thesecond degree on the ground that the amended sentence was excessive.
Ordered that the amended sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the Supreme Court'slimited colloquy did not ensure that the defendant understood the distinction of the right toappeal from the other rights automatically forfeited upon entering a plea of guilty (see People v Bradshaw, 18 NY3d257, 267 [2011]; People vBrown, 122 AD3d 133, 137 [2014]; People v Johnson, 109 AD3d 1004 [2013]). Moreover, although thedefendant executed a written appeal waiver form, the transcript of the plea proceedingdemonstrates that the court did not ascertain on the record whether the defendant had read thewaiver or discussed it with defense counsel, or whether the defendant was even aware of itscontents (see People v Santeramo,153 AD3d 1286, 1287 [2017]; People v Brown, 122 AD3d at 145). Under thecircumstances here, the defendant did not knowingly, voluntarily, and intelligently waive hisright to appeal, and thus, the waiver does not preclude review of this excessive sentence claim(see People v Johnson, 157 AD3d964, 965 [2018]; People vBrown, 122 AD3d 133 [2014]). However, the amended sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Miller, Duffy andLaSalle, JJ., concur.