| People v Gooding |
| 2019 NY Slip Op 05561 [174 AD3d 642] |
| July 10, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Galveston Gooding, Appellant. |
Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Seth M. Lieberman ofcounsel; Marielle Burnett on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew J.D'Emic, J.), rendered January 5, 2017, convicting him of criminal possession of a firearm, uponhis plea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of anorder of protection issued at the time of sentencing will be reviewed.
Ordered that upon the appeal from the judgment, so much of the order of protection asdirected that it remain in effect until January 4, 2029, is vacated, and the matter is remitted to theSupreme Court, Kings County, for a new determination of the duration of the order of protection,taking into account the defendant's jail-time credit; and it is further,
Ordered that the judgment 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 whichare forfeited incident to a plea of guilty (see People v Brown, 122 AD3d 133, 137-138, 141 [2014]).Moreover, although the record reflects that the defendant executed a written appeal waiver form,the transcript of the plea proceeding demonstrates that the Supreme Court did not ascertain onthe record whether the defendant had read the waiver or discussed it with defense counsel, orwhether he was even aware of its contents (see People v Santeramo, 153 AD3d 1286, 1287 [2017]; Peoplev Brown, 122 AD3d at 145). Under the circumstances here, the defendant did not knowingly,voluntarily, and intelligently waive his right to appeal (see People v Brown, 122 AD3d 133 [2014]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]).
As the People correctly concede, the duration of the order of protection issued at the time ofsentencing exceeded the maximum time limit set forth in CPL 530.13 (4), and failed to take intoaccount the defendant's jail-time credit. Accordingly, we vacate so much of the order ofprotection as directed that it remain in effect until and including January 4, 2029, and remit thematter to the Supreme Court, Kings County, for a new determination of the duration of the orderof protection (see People v Ramos,164 AD3d 922 [2018]; People vOrtiz, 25 AD3d 811 [2006]). Dillon, J.P., Roman, Maltese and Connolly, JJ.,concur.