| People v Ortiz |
| 2018 NY Slip Op 08330 [167 AD3d 658] |
| December 5, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Ortiz, Appellant. |
The Legal Aid Society, New York, NY (Justine M. Luongo and Desiree Sheridan ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Ronald D. Hollie, J.), imposed April 13, 2016, upon his plea of guilty, on theground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid (see People v Bradshaw, 18 NY3d257, 264 [2011]; People vLittle, 127 AD3d 1235, 1235-1236 [2015]; People v Brown, 122 AD3d 133, 137 [2014]). When the SupremeCourt explained the defendant's waiver of his right to appeal to him, it improperly conflated theright to appeal with the rights automatically forfeited by a plea of guilty (see People v Diaz, 146 AD3d 803,804 [2017]; People v Wells, 135AD3d 976 [2016]; People vBond, 109 AD3d 481 [2013]). As such, the record does not demonstrate that thedefendant understood the nature of the right he was being asked to waive or the distinctionbetween the right to appeal and the other trial rights which are forfeited incident to a plea ofguilty (see People v Crochran, 164AD3d 598 [2018]). Moreover, although the record of the proceedings reflects that thedefendant executed a written waiver of his right to appeal, no written waiver is contained in therecord on appeal (see People vZirkel, 164 AD3d 846, 846 [2018]). While the defendant acknowledged, in response tothe court's inquiry, that the written waiver had been translated from English to Spanish, the courtdid not ascertain on the record whether the defendant had read the waiver or discussed it withdefense counsel (see People vIovino, 142 AD3d 561, 561-562 [2016]; People v Brown, 122 AD3d at 145).Under the circumstances, we conclude that the defendant did not knowingly, voluntarily, andintelligently waive his right to appeal (see People v Crochran, 164 AD3d 598 [2018]; People v Johnson, 157 AD3d 964,965 [2018]; People v Brown, 122AD3d 133 [2014]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]). Dillon, J.P., Austin, Roman and Maltese, JJ., concur.