| People v Kang |
| 2020 NY Slip Op 02661 [183 AD3d 640] |
| May 6, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Scott Kang, Appellant. |
Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and RoniPiplani of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the SupremeCourt, Queens County (Barry Kron, J.), imposed September 13, 2018, upon his plea ofguilty, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People vThomas, 34 NY3d 545 [2019]; People vBradshaw, 18 NY3d 257, 267 [2011]; People v Lopez, 6 NY3d 248, 257 [2006]). The SupremeCourt's colloquy failed to sufficiently advise the defendant of the nature of his right toappeal, and to assure that the defendant understood the distinction between the waiver ofhis right to appeal and other rights automatically forfeited upon a plea of guilty (seePeople v Weeks, 182 AD3d 539, 540 [2d Dept 2020]; People v Smalls, 178 AD3d 738, 738-739 [2019]; People v Birch, 171 AD3d938, 939 [2019]). In addition, the court never elicited an acknowledgment that thedefendant was voluntarily waiving his right to appeal (see People v Birch, 171AD3d at 938; People vPelaez, 100 AD3d 803, 803 [2012]). Although the record includes a writtenwaiver of the right to appeal that was purportedly signed by the defendant three daysprior to the plea proceeding, the court failed to ascertain on the record whether thedefendant had read the waiver, discussed it with counsel, or was even aware of itscontents (see People v Weeks, 182 AD3d at 540 [2020]; People v Smalls, 178 AD3d at 739; People v Birch, 171AD3d at 939). Under these circumstances, and given the defendant's significant mentalhealth history, the defendant's purported waiver of his right to appeal was invalid anddoes not preclude appellate review of his excessive sentence claim (see People vBradshaw, 18 NY3d at 266; People v Smalls, 178 AD3d at 739; People v Farrell, 169 AD3d919, 920 [2019]; People vBrown, 167 AD3d 929 [2018]).
However, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Balkin, J.P., Chambers, Cohen, Connolly and Wooten, JJ.,concur.