People v. Pittman

48 A.D.3d 709, 852 N.Y.S.2d 305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 2008
• Status: Published

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Holdman, J.), imposed July 13, 2006, upon his conviction of criminal possession of a weapon in the third degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of seven years and a period of post-release supervision of three years.

Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment of 7 years to a determinate term of imprisonment of 3 years and by reducing the period of post-release supervision of 3 years to a period of post-release supervision of IV2 years.

The defendant was incorrectly informed, in a preprinted waiver form, that his right to appeal did not include the right to appellate review of his sentence on the ground that it was excessive (see People v Hurd, 44 AD3d 791, 792 [2007], lv denied 9 NY3d 1006 [2007]). Therefore, the purported waiver of his right to appeal cannot be considered knowing, voluntary, and intelligent (see People v Hale, 30 AD3d 613, 614 [2006]; People v Rose, 236 AD2d 637 [1997]; People v Rolon, 220 AD2d 543 [1995]).

In light of all of the circumstances of this case, the sentence imposed is excessive to the extent indicated herein (see People v Suitte, 90 AD 2d 80, 83-87 [1982]). Prudenti, EJ., Spolzino, Florio, Covello and Dickerson, JJ., concur.