| People v Zirkel |
| 2018 NY Slip Op 05877 [164 AD3d 846] |
| August 22, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Zirkel, Appellant. |
Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel; Walter Halstad 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 January 6, 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 that areforfeited incident to a plea of guilty (seePeople v Guniss, 160 AD3d 895, 896 [2018]; People v Kupershmidt, 152 AD3d 797, 798 [2017]; People v Burnett-Hicks, 133 AD3d773, 774 [2015]). 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.The court's colloquy amounted to nothing more than a simple confirmation that the defendantsigned the waiver (see People v Guniss, 160 AD3d at 896; People vBurnett-Hicks, 133 AD3d at 774). The court failed to ascertain on the record whether thedefendant had read the waiver or discussed it with defense counsel, or whether he was evenaware of its contents (see People vPacheco, 138 AD3d 1035, 1036 [2016]; People v Brown, 122 AD3d 133, 145 [2014]). Under thesecircumstances, we conclude that the record does not demonstrate that the defendant knowingly,voluntarily, and intelligently waived his right to appeal (see People v Guniss, 160 AD3dat 896; People v Johnson, 157AD3d 964, 965 [2018]; People vSmith, 156 AD3d 944 [2017]; People v Kupershmidt, 152 AD3d at 798).
However, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Rivera, Austin, Cohen andBarros, JJ., concur.