Opinion
08-10-2016
The PEOPLE, etc., respondent, v. Christopher IOVINO, appellant.
Seymour W. James, Jr., New York, NY (Allen Fallek of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
Seymour W. James, Jr., New York, NY (Allen Fallek of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, THOMAS A. DICKERSON, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Rienzi, J.), imposed November 28, 2011, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence 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 other trial rights forfeited incident to his plea of guilty (see People v. Gordon, 127 A.D.3d 1230, 1230–1231, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554 ). Furthermore, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding shows that “[t]he 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” (People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ; see People v. Gordon, 127 A.D.3d at 1231, 5 N.Y.S.3d 900 ). Accordingly, “despite [the] defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently, or voluntarily waive his right to appeal as the record fails to demonstrate a ‘full appreciation of the consequences of such waiver’ ” (People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172, quoting People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Gordon, 127 A.D.3d at 1231, 5 N.Y.S.3d 900 ).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).