Opinion
2018–09011 Ind. No. 636/17
11-13-2019
The PEOPLE, etc., Respondent, v. Robert CRUZ, Appellant.
Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Manipal Singh on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Manipal Singh on the memorandum), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the sentence is affirmed. The defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The record of the plea proceeding fails to establish that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Dunn, 167 A.D.3d 651, 652, 86 N.Y.S.3d 916 ). Although the defendant signed a written waiver of his right to appeal, the Supreme Court failed to obtain confirmation that the defendant had read the document before signing it and that he understood it (see People v. Bradley, 167 A.D.3d 768, 87 N.Y.S.3d 513 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.