People v. Fernandez

2019 NY Slip Op 459

Opinion

People v Fernandez (2019 NY Slip Op 00459)

People v Fernandez

2019 NY Slip Op 00459

Decided on January 23, 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 23, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.

2017-03250
(Ind. No. 2115/13)

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

v

Edwin Fernandez, appellant.

Janet E. Sabel, New York, NY (Justine M. Luongo and Ronald Alfano of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Victoria Randall on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Michael Aloise, J.), imposed November 15, 2016, upon his plea of guilty, 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 and does not preclude review of his excessive sentence claim. The Supreme Court's terse colloquy failed to advise the defendant of the nature of the right to appeal and to ensure that the defendant grasped the concept of the appeal waiver and the nature of the right he was forgoing (see People v Bradshaw, 18 NY3d 257, 267; People v Lopez, 6 NY3d 248, 255; People v Vasquez, 101 AD3d 1054, 1054-1055). Further, although the defendant signed a written waiver of his right to appeal, the court did not ascertain on the record whether the defendant read the written waiver or was aware of its contents (see People v Bratton, 165 AD3d 693, 693).

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

RIVERA, J.P., HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court