Opinion
2014-11-26
The PEOPLE, etc., respondent, v. Geraldo QUEZADA, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Michael Onah on the memorandum), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Michael Onah on the memorandum), for respondent.
RANDALL T. ENG, P.J., PETER B. SKELOS, JOHN M. LEVENTHAL, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Mullings, J.), imposed July 12, 2012, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal was invalid. “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297). Here, although the defendant executed a written waiver of his right to appeal, the defendant's understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the Supreme Court's oral colloquy. Accordingly, under the circumstances of this case, including the defendant's lack of prior experience with the criminal justice system ( see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645), the defendant's appeal waiver was invalid ( see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297; People v. Angelis, 94 A.D.3d 902, 941 N.Y.S.2d 862), and does not preclude review of his excessive sentence claim.
However, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).