Opinion
2014-04-9
The PEOPLE, etc., respondent, v. David REYES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure 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. (Paul Skip Laisure 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.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Lasak, J.), imposed May 23, 2012, 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. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108) and, thus, does not preclude review of his excessive sentence claim. “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. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843). A valid appellate waiver occurs when a defendant has “a full appreciation of the consequences” of the waiver ( People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). In determining such appreciation, the trial court should “ ‘assess all of the relevant factors surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused’ ” ( People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Moreover, “[a] written waiver ‘is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right’ ” ( People v. Crawford, 110 A.D.3d 916, 916, 977 N.Y.S.2d 37,lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 373, 4 N.E.3d 385, quoting People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93,affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645;see People v. Pelaez, 100 A.D.3d 803, 804, 954 N.Y.S.2d 554).
Here, at the time of his plea, the defendant was 21 years old with no prior experience with the criminal justice system. Given these facts, the Supreme Court's perfunctory oral colloquy, which addressed only the defendant's execution of a written waiver of the right to appeal, did not ensure that he was knowingly, intelligently, and voluntarily waiving his right to appeal ( see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645).
However, under the circumstances of this case, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). ENG, P.J., SKELOS, LEVENTHAL and SGROI, JJ., concur.