Opinion
2014-01-8
The PEOPLE, etc., respondent, v. Anton JOHNSON, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Jonathan K. Yi on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Jonathan K. Yi on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hirsch, J.), rendered June 26, 2012, convicting him of burglary in the third degree, criminal mischief in the second degree, possession of burglar's tools, criminal possession of stolen property in the fifth degree, aggravated unlicensed operation of a motor vehicle in the first degree, failure to stop at an intersection, and operating a motor vehicle and permitting it to be operated in this state without having in full force financial security, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was forgoing” (People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; see People v. Springer, 109 A.D.3d 557, 557, 970 N.Y.S.2d 462 [internal quotation marks omitted]; People v. Grant, 83 A.D.3d 862, 862–863, 921 N.Y.S.2d 285). Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” (People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172; People v. Vasquez, 101 A.D.3d 1054, 1055, 956 N.Y.S.2d 171; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Accordingly, review of the defendant's excessive sentence claim is not precluded.
Nevertheless, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). MASTRO, J.P., BALKIN, SGROI and HINDS–RADIX, JJ., concur.