| People v Leak |
| 2018 NY Slip Op 05695 [164 AD3d 606] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffery Leak, Appellant. |
Paul Skip Laisure, New York, NY (Nao Teri of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Danielle S. Fenn of counsel; Lorrie Zinno on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from three sentences of the SupremeCourt, Queens County (Gia Morris, J., at pleas; Dorothy Chin-Brandt, J., at sentences), allimposed November 14, 2016, upon his pleas of guilty, on the ground that the sentences wereexcessive.
Ordered that the sentences are affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to twocounts of attempted robbery in the first degree (see Penal Law§§ 110.00, 160.15 [4]) and one count of robbery in the third degree (see PenalLaw § 160.05), in satisfaction of three superior court informations. He wassentenced, in accordance with the plea agreement, to (1) two determinate terms of 8 years'imprisonment plus 5 years of postrelease supervision on the convictions of attempted robbery inthe first degree, and (2) an indeterminate term of 3
On appeal, the defendant contends that the sentences of imprisonment were excessive. ThePeople contend that the defendant's argument is precluded by his waiver of the right toappeal.
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]). 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; see People v Rocchino, 153 AD3d [*2]1284 [2017]; People v Blackwood, 148 AD3d 716, 716 [2017]).
Here, the record of the plea proceeding demonstrates that the defendant received an oralexplanation of the nature of the right to appeal and the consequences of waiving that right (see People v Rocchino, 153 AD3d1284 [2017]; People v Stiles,143 AD3d 747, 747 [2016]; Peoplev Romero-Flores, 128 AD3d 1102, 1102 [2015]; People v McRae, 123 AD3d 848, 848-849 [2014]; see alsoPeople v Brown, 122 AD3d at 144). Furthermore, the record demonstrates that the defendantexecuted a written appeal waiver form which, among other things, showed that he understoodthat his right to appeal was separate and distinct from those rights automatically forfeited upon aplea of guilty (see People v Bryant,28 NY3d 1094, 1096 [2016]; seealso People v Taylor, 162 AD3d 690 [2d Dept 2018]). On the record presented, weconclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal(see generally People v Bryant, 28 NY3d at 1096; People v Sanders, 25 NY3d 337, 341 [2015]; People vBradshaw, 18 NY3d at 264-267; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez,6 NY3d at 255; People v Hidalgo, 91 NY2d 733, 735 [1998]). Accordingly, thedefendant's valid waiver of his right to appeal precludes review of his contention that thesentences imposed were excessive (see People v Hardy, 120 AD3d 1358, 1358 [2014]; People v Arteev, 120 AD3d 1255,1255 [2014]; People v Alexander,104 AD3d 862, 862 [2013]). Scheinkman, P.J., Austin, Miller, Hinds-Radix and Maltese,JJ., concur.