| People v Bakayoko |
| 2019 NY Slip Op 05677 [174 AD3d 730] |
| July 17, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Moussa Bakayoko, Appellant. |
Paul Skip Laisure, New York, NY (Erica Horwitz of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano andJohnnette Traill of counsel; Kristin Rainis on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Steven Paynter, J.), imposed January 30, 2013, sentencing him to concurrentindeterminate terms of imprisonment of 2 to 6 years upon his conviction of robbery in the thirddegree, and 1
Ordered that the sentence is modified, as a matter of discretion in the interest of justice, byreducing the concurrent indeterminate terms of imprisonment of 2 to 6 years and1
A waiver of the right to appeal is effective only so long as the record demonstrates that it wasmade knowingly, voluntarily, and intelligently (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Daniels, 160 AD3d 979,980 [2018]). The defendant's purported waiver of the right to appeal was invalid. It is notapparent from the face of the record that the defendant had a full appreciation of theconsequences and understanding of the waiver of the right to appeal (cf. People v Sanders, 25 NY3d337, 340 [2015]). The defendant's responses to the questions posed to him during the pleaproceeding did not evince that he knowingly, voluntarily, and intelligently waived the right toappeal.
Given the defendant's age of 20 years, that he had dropped out of high school in the 11thgrade, that he had documented mental health issues, and his limited experience in the criminaljustice system, the Supreme Court's terse colloquy regarding the appeal waiver was insufficient(see People v Anderson, 170 AD3d739, 741 [2019]; People vFuller, 163 AD3d 715, 715 [2018]). A written appeal waiver, such as the one signed bythe defendant, is "not a complete substitute for an on-the-record explanation of the nature of theright to appeal" (People v Latham,162 AD3d 1068, 1070 [2018] [internal quotation marks omitted]; see People v Anderson, 170 AD3d739 [2019]). It is not "sufficient for the trial court to defer to the defendant's off-the-recordconversations with defense counsel by merely confirming with defense counsel that he or she hasdiscussed the waiver of the right to appeal with the defendant" (People v Brown, 122 AD3d 133,141 [2014]; see People v Anderson, 170 AD3d at 741). Thus, the appeal waiver does notpreclude review of the defendant's excessive sentence claim.
Although the defendant has served his respective sentences, the question of whether thesentences imposed should be reduced is not academic, because those sentences may havepotential immigration consequences (seePeople v Broderick, 165 AD3d 972 [2018]; People v Scott, 156 AD3d 913 [2017]; People v Aisewomhonio, 131 AD3d1177, 1178 [2015]).
Considering all of the relevant circumstances of this case, including the potentialimmigration consequences to the defendant, his sentences should be reduced to concurrentdefinite terms of imprisonment of 364 days (see People v Cortez, 160 AD3d 893 [2018]; People v Scott, 156 AD3d 913[2017]; People v Aisewomhonio,131 AD3d 1177 [2015]; People vWeston, 98 AD3d 1066 [2012]). Balkin, J.P., Chambers, Cohen, Barros and Connolly,JJ., concur.