Opinion
2017–02512 2017–02513 Ind. Nos. 713/15, 5884/16
02-20-2019
The PEOPLE, etc., Respondent, v. Nicholas SOTO, Appellant.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS SYLVIA O. HINDS–RADIX JOSEPH J. MALTESE, JJ.
DECISION & ORDERORDERED that the judgments are affirmed.
The defendant's purported waiver of his right to appeal was invalid, as the Supreme Court's limited colloquy did not ensure that the defendant understood the distinction between the right to appeal and the rights automatically forfeited upon entering a plea of guilty (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Dixon, 163 A.D.3d 988, 81 N.Y.S.3d 186 ; People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ). Moreover, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had discussed the waiver of appeal with defense counsel, or elicit an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Dixon, 163 A.D.3d at 988, 81 N.Y.S.3d 186 ; People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ; People v. Brown, 122 A.D.3d at 144–145, 992 N.Y.S.2d 297 ). Thus, contrary to the People's contentions, the record reveals that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal. Therefore, the waiver does not preclude review on the merits of his contentions that the court improvidently exercised its discretion in denying him youthful offender treatment and that the sentence imposed was excessive (see People v. Whidbee, 164 A.D.3d 623, 78 N.Y.S.3d 674 ; cf. People v. Pacherille, 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 ; People v. Worrell, 157 A.D.3d 727, 66 N.Y.S.3d 618 ).
Nevertheless, we agree with the Supreme Court's determination to deny the defendant youthful offender treatment (see People v. Mullings, 83 A.D.3d 871, 921 N.Y.S.2d 152 ; People v. Ortega, 114 A.D.2d 912, 495 N.Y.S.2d 82 ). Further, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.