Opinion
2013-08-7
The PEOPLE, etc., respondent, v. Antonio GIL, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 13, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In November 2011, the defendant agreed to plead guilty to one count of criminal possession of a weapon in the second degree, in satisfaction of a multicount indictment. On the day the defendant pleaded guilty, the court told him that a condition of the plea agreement was that he waive his right to appeal. The court did not, however, explain the right to appeal until the date the defendant was sentenced, more than a month after the defendant pleaded guilty, and only after the sentence was actually pronounced. Also, the defendant's written waiver of the right to appeal was executed after the pronouncement of sentence. These circumstances do not establish that the defendantknowingly, voluntarily, and intelligently agreed to waive his right to appeal as a condition of his plea of guilty. Accordingly, the appeal waiver may not be enforced ( see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Bouton, 107 A.D.3d 1035, 1036–1037, 967 N.Y.S.2d 200).
Nonetheless, the defendant's contention that the sentence violated the Eighth Amendment prohibition against cruel and unusual punishment is unpreserved for appellate review ( see People v. Gonzales, 101 A.D.3d 1149, 1151, 956 N.Y.S.2d 555), and, in any event, is without merit ( see People v. Khan, 89 A.D.3d 750, 751–752, 932 N.Y.S.2d 107). Furthermore, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).