Opinion
2018–15058
06-17-2020
The PEOPLE, etc., Respondent, v. Steven LEIVA, Appellant. (S.C.I. No. 2233/18)
Paul Skip Laisure, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Anmari Guerrero on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Anmari Guerrero on the memorandum), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gia Lynne Morris, J.), imposed November 14, 2018, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The Supreme Court's statement to the defendant that by signing the appeal waiver form, the defendant was giving up his right to appeal and "there will be no appeal to a higher court" suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The written appeal waiver form did not overcome the defect in the court's explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues (see id. at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Thus, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim (see People v. Fuller, 163 A.D.3d 715, 715, 76 N.Y.S.3d 852 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.