Opinion
2015–11525 Ind. No. 10766/11
12-12-2018
The PEOPLE, etc., Respondent, v. Nelson CHEVOY, Appellant.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael L. Brenner of counsel; Kyle Knox on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael L. Brenner of counsel; Kyle Knox on the memorandum), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid, due to the Supreme Court's limited colloquy which did not ensure that the defendant understood the distinction of the right to appeal from the other rights automatically forfeited upon entering a plea of guilty (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ; People v. Johnson, 109 A.D.3d 1004, 971 N.Y.S.2d 469 ). Moreover, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver, or whether he was even aware of its contents (see People v. Santeramo, 153 A.D.3d 1286, 1287, 61 N.Y.S.3d 295 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Under the circumstances of this case, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and thus, the purported waiver does not preclude review of his excessive sentence claim (see People v. Johnson, 157 A.D.3d 964, 965, 67 N.Y.S.3d 492 ; People v. Brown, 122 A.D.3d at 146, 992 N.Y.S.2d 297 ). However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.