People v. Quezada , 997 N.Y.S.2d 475 ( 2014 )

People v Quezada (2014 NY Slip Op 08355)

People v Quezada

2014 NY Slip Op 08355

Decided on November 26, 2014

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 November 26, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
PETER B. SKELOS
JOHN M. LEVENTHAL
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.

2012-07207

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

v

Geraldo Quezada, appellant. (S.C.I. No. 10275/12)

Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky of counsel; Michael Onah 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 (Mullings, J.), imposed July 12, 2012, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of the right to appeal was invalid. "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256; see People v Bradshaw, 18 NY3d 257, 264; People v Brown, ____AD3d____, 2014 NY Slip Op 06101, *2 [2d Dept 2014]). Here, although the defendant executed a written waiver of his right to appeal, the defendant's understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the Supreme Court's oral colloquy. Accordingly, under the circumstances of this case, including the defendant's lack of prior experience with the criminal justice system (see People v Bradshaw, 18 NY3d at 264-265), the defendant's appeal waiver was invalid (see People v Brown, ____AD3d____, 2014 NY Slip Op 06101; People v Angelis, 94 AD3d 902), and does not preclude review of his excessive sentence claim.

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

ENG, P.J., SKELOS, LEVENTHAL, ROMAN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court