Opinion
2017–02992 Ind. No. 2539/14
04-24-2019
The PEOPLE, etc., respondent, v. Judith JOHNSON, appellant.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Andrew S. Durham of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Andrew S. Durham of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The record does not demonstrate that the defendant understood the distinction between the right to appeal she was asked to give up as a condition of the plea agreement and other trial rights she automatically forfeited upon her plea of guilty (see People v. Barthelemy, 168 A.D.3d 871, 89 N.Y.S.3d 903 [2d Dept 2019] ; People v. Chevoy, 167 A.D.3d 768, 87 N.Y.S.3d 500 ; People v. Reillo, 164 A.D.3d 1476, 81 N.Y.S.3d 909 ). Moreover, although the defendant executed a written appeal waiver form after being given an opportunity to discuss it with her attorney, the transcript of the plea proceeding failed to demonstrate that the defendant had read the waiver or that she was aware of its contents (see People v. Chevoy, 167 A.D.3d at 768–769, 87 N.Y.S.3d 500 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Further, the terse discussion between the Supreme Court and the defendant's attorney failed to demonstrate that the defendant grasped the concept of the appeal waiver and the nature of the right she was forgoing (see People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Fernandez, 168 A.D.3d 973, 90 N.Y.S.3d 548 ). Since the defendant's purported waiver of the right to appeal was invalid, this Court is not precluded from reviewing the defendant's contention that the sentence imposed was excessive.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.