| People v Mojica |
| 2019 NY Slip Op 08868 [178 AD3d 856] |
| December 11, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raul Mojica, Appellant. |
Paul Skip Laisure, New York, NY (Lynn W.L. Fahey 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, as limited by his motion, from a sentence of the Supreme Court,Kings County (Marguerite Dougherty, J.), imposed August 21, 2017, upon his plea of guilty, onthe ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Bradshaw, 18 NY3d257, 264 [2011]; People vLopez, 6 NY3d 248, 256 [2006]). At the plea allocution, the Supreme Court failed toadvise the defendant that he would ordinarily retain the right to appeal even after pleading guilty,but that in this case he was being asked to voluntarily relinquish that right as a condition of theplea agreement (see People vAlston, 163 AD3d 843, 844 [2018]; cf. People v Brown, 122 AD3d 133, 144 [2014]). Moreover, thecourt never elicited an acknowledgment that the defendant was voluntarily waiving his right toappeal (see People v Santeramo, 153AD3d 1286 [2017]; People vGuarchaj, 122 AD3d 878, 879 [2014]).
Although the record on appeal reflects that the defendant signed a written appeal waiverform, a written waiver "is not a complete substitute for an on-the-record explanation of the natureof the right to appeal" (People vBradshaw, 76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011]; see Peoplev Brown, 122 AD3d at 138-139). While the written waiver in this case "expressly providedthat the [Supreme] [C]ourt had informed the defendant about the nature of his right to appeal,that representation is contradicted by the oral colloquy," which suggested that the waiver of theright to appeal was mandatory (People v Brown, 122 AD3d at 145). Moreover, althoughthe defendant stated on the record that he discussed the waiver with counsel, the court did notascertain whether the defendant read the written waiver or was aware of its contents (see People v Himonitis, 174 AD3d738, 738 [2019]; People v Brown, 122 AD3d at 145). Under the circumstances, thedefendant's purported waiver of his right to appeal does not preclude appellate review of hiscontention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at 255;People v Brown, 122 AD3d133 [2014]).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Maltese, Barros, BrathwaiteNelson and Iannacci, JJ., concur.