| People v Himonitis |
| 2019 NY Slip Op 05688 [174 AD3d 738] |
| July 17, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antonio Himonitis, Appellant. |
Steven A. Feldman, Uniondale, NY, for appellant.
Letitia James, Attorney General, New York, NY (Matthew B. Keller and Michelle Maerov ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (John B.Collins, J.), rendered April 28, 2016, convicting him of criminal sale of a firearm in the firstdegree, conspiracy in the fourth degree, and criminal possession of a weapon in the seconddegree (three counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
"A defendant's valid waiver of the right to appeal includes waiver of the right to invoke theAppellate Division's interest-of-justice jurisdiction to reduce the sentence" (People v Lopez, 6 NY3d 248, 255[2006]; see People v Batista, 167AD3d 69 [2018]). Contrary to the People's contention, the defendant's purported waiver ofhis right to appeal was invalid (seePeople v Bradshaw, 18 NY3d 257, 264 [2011]; People v Keene, 160 AD3d 897 [2018]; People v Weber, 153 AD3d 946[2017]). The County Court's colloquy at the plea allocution failed to sufficiently advise thedefendant of the nature of the right to appeal and the consequences of waiving it (see People v Farrell, 169 AD3d919, 919 [2019]). Further, although the defendant signed a written waiver form, the court didnot ascertain on the record whether the defendant read the written waiver or was aware of itscontents (see People v Bratton, 165AD3d 693, 693 [2018]; People vBrown, 122 AD3d 133, 145 [2014]). Since the defendant's purported waiver of his rightto appeal was invalid, this Court is not precluded from reviewing the defendant's excessivesentence claim.
However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
Although the County Court lacked discretion at sentencing to defer the mandatory surcharge(see People v Jones, 26 NY3d730, 732-733 [2016]), the court's error in this regard, which was in the defendant's favor,does not entitle him to the relief he seeks (see People v Tietje, 171 AD3d 1221, 1222 [2019]; People v Rodriguez, 162 AD3d513, 514 [2018]). Balkin, J.P., Leventhal, Roman and Connolly, JJ., concur.