| People v McTerrell |
| 2019 NY Slip Op 05568 [174 AD3d 648] |
| July 10, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sean McTerrell, Appellant. |
Paul Skip Laisure, New York, NY (Erica Horwitz of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, and DianeR. Eisner of counsel; Masha Simonova on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil JonFiretog, J.), rendered June 25, 2015, convicting him of assault in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d257, 264 [2011]; People vBrown, 122 AD3d 133, 136 [2014]). The Supreme Court's statements at the pleaallocution improperly suggested that waiving the right to appeal was mandatory rather than aright which the defendant was being asked to voluntarily relinquish (see People v Moncrieft, 168 AD3d982, 984 [2019]; People vGuarchaj, 122 AD3d 878, 879 [2014]). Additionally, the court failed to inquire of thedefendant whether he understood the appeal waiver or to elicit an acknowledgment that thedefendant was voluntarily waiving his right to appeal (see People v Bradshaw, 18 NY3dat 265-266; People v Moncrieft, 168 AD3d at 984). Although the defendant signed awritten waiver of the right to appeal, the court never confirmed that the defendant had read andunderstood the document before signing it (see People v Bratton, 165 AD3d 693 [2018]; People v Medina, 161 AD3d 778,779 [2018]). Thus, the defendant's purported waiver of his right to appeal was invalid, and doesnot preclude review of his excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]).
The defendant's contention, raised in his pro se supplemental brief, that the amount of bailwas excessive, has been rendered academic by his plea of guilty (see People ex rel. Fergusonv Campbell, 186 AD2d 319 [1992]; People ex rel. Griffin v Warden, Brooklyn House ofDetention for Men, 40 AD2d 859 [1972]).
The defendant waived his contention, raised in his pro se supplemental brief, that he wasdenied the right to testify before the grand jury by failing to move to dismiss the indictmentwithin five days after his arraignment thereon (see CPL 190.50 [5] [c]; People v Zeigler, 128 AD3d 737,738 [2015]).
The defendant's claims of ineffective assistance of counsel, raised in his pro se supplementalbrief, which do not directly involve the plea negotiation process and sentence, have beenforfeited by his guilty plea (see People vDavid, 163 AD3d 846 [2018]; People v Worthy, 138 AD3d 1042, 1042-1043 [2016]). Thedefendant's contention that defense counsel was ineffective with respect to the sentencingproceeding is without merit (see People v Benevento, 91 NY2d 708, 712 [1998]).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Balkin, J.P., Leventhal, Roman and Connolly, JJ., concur.