Opinion
2017–03250 Ind. No. 2115/13
01-23-2019
The PEOPLE, etc., Respondent, v. Edwin FERNANDEZ, Appellant.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Ronald Alfano of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Victoria Randall on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Justine M. Luongo and Ronald Alfano of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Victoria Randall on the memorandum), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid and does not preclude review of his excessive sentence claim. The Supreme Court's terse colloquy failed to advise the defendant of the nature of the right to appeal and to ensure that the defendant grasped the concept of the appeal waiver and the nature of the right he was forgoing (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Vasquez, 101 A.D.3d 1054, 1054–1055, 956 N.Y.S.2d 171 ). Further, although the defendant signed a written waiver of his right to appeal, the court did not ascertain on the record whether the defendant read the written waiver or was aware of its contents (see People v. Bratton, 165 A.D.3d 693, 693, 82 N.Y.S.3d 738 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.