Opinion
2015–11642 S.C.I. No. 10362/14
01-16-2019
The PEOPLE, etc., Respondent, v. Pedro TORRES, Appellant.
Paul Skip Laisure, New York, N.Y. (David L. Goodwin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Trail, and Roni C. Piplani of counsel; Dylan Evans on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (David L. Goodwin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Trail, and Roni C. Piplani of counsel; Dylan Evans on the memorandum), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, FRANCESCA CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Stephanie Zaro, J.), imposed November 12, 2014, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Although the defendant signed a written waiver of his right to appeal, the record does not demonstrate that he had a full appreciation of the consequences of the waiver (see People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Reyes, 116 A.D.3d 798, 982 N.Y.S.2d 907 ), as the Supreme Court's brief colloquy failed to sufficiently advise him of the nature of the right to appeal and the consequences of waiving it (see People v. Guarchaj, 122 A.D.3d 878, 996 N.Y.S.2d 372 ; People v. Brown, 122 A.D.3d 133, 140, 992 N.Y.S.2d 297 ). Additionally, there is no indication in the record that the defendant understood the distinction between the right to appeal and other rights that are automatically forfeited on a plea of guilty (see People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Hong Mo Lin, 163 A.D.3d 849, 79 N.Y.S.3d 656 ). Under these circumstances, including the fact that the case was the defendant's first known contact 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 ; People v. Hong Mo Lin, 163 A.D.3d at 850, 79 N.Y.S.3d 656 ), the defendant's appeal waiver was invalid and does not preclude review of his excessive sentence claim (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Ellis, 146 A.D.3d 806, 43 N.Y.S.3d 910 ).
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., ROMAN, MALTESE and CONNOLLY, JJ., concur.