People v. Ritorto

2016 NY Slip Op 7681, 144 A.D.3d 949, 40 N.Y.S.3d 790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2016
• Docket: 2015-02959
• Status: Published

Opinion

Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Kings County (Del Giudice, J.), imposed March 31, 2015, upon his plea of guilty, after remittitur from this Court (see People v Ritorto, 125 AD3d 896 [2015]), on the ground that the resentence was excessive.

Ordered that the resentence is affirmed.

The defendant’s purported waiver of his right to appeal was invalid, as the record fails to establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Maracle, 19 NY3d 925, 927-928 [2012]; People v Hunter, 139 AD3d 754 [2016]; People v Barksdale, 131 AD3d 704 [2015]; People v Bostic, 125 AD3d 992 [2015]). Thus, the waiver does not preclude review of the defendant’s excessive sentence claim. However, the resentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Eng, P.J., Dillon, Sgroi, Miller and Brathwaite Nelson, JJ., concur.