People v. Altamirano

2019 NY Slip Op 293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2019
• Docket: Ind. No. 1995/15
• Status: Published

Opinion

People v Altamirano (2019 NY Slip Op 00293)

People v Altamirano

2019 NY Slip Op 00293

Decided on January 16, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 16, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.

2017-01011
(Ind. No. 1995/15)

[*1]The People of the State of New York, respondent,

v

Giovanny Altamirano, appellant.

Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Suffolk County (Martin Efman, J.), imposed December 7, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

As the People correctly concede, the defendant's purported waiver of the right to appeal was invalid. The Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v Brown, 122 AD3d 133, 142). Although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, no written waiver is contained in the record on appeal. Moreover, the court failed to ascertain on the record whether the defendant was aware of the waiver's contents and fully understood its nature and consequences (see People v Iovino, 142 AD3d 561, 561-562; People v Brown, 122 AD3d at 145). Thus, the waiver does not preclude review of the defendant's excessive sentence claim.

However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

MASTRO, J.P., LEVENTHAL, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court