Opinion
2017–01283 Ind.No. 2532/16
07-10-2019
The PEOPLE, etc., Respondent, v. Galveston GOODING, Appellant.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Marielle Burnett on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Alice R.B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Marielle Burnett on the memorandum), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that upon the appeal from the judgment, so much of the order of protection as directed that it remain in effect until January 4, 2029, is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the order of protection, taking into account the defendant's jail-time credit; and it is further,
ORDERED that the judgment is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Brown , 122 A.D.3d 133, 137–138, 141, 992 N.Y.S.2d 297 ). Moreover, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, 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 here, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown , 122 A.D.3d 133, 992 N.Y.S.2d 297 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
As the People correctly concede, the duration of the order of protection issued at the time of sentencing exceeded the maximum time limit set forth in CPL 530.13(4), and failed to take into account the defendant's jail-time credit. Accordingly, we vacate so much of the order of protection as directed that it remain in effect until and including January 4, 2029, and remit the matter to the Supreme Court, Kings County, for a new determination of the duration of the order of protection (see People v. Ramos , 164 A.D.3d 922, 82 N.Y.S.3d 103 ; People v. Ortiz , 25 A.D.3d 811, 809 N.Y.S.2d 153 ).
DILLON, J.P., ROMAN, MALTESE and CONNOLLY, JJ., concur.