People v. Ayala
| Decision Date | 04 December 2013 |
| Citation | 975 N.Y.S.2d 889,112 A.D.3d 646,2013 N.Y. Slip Op. 08094 |
| Parties | The PEOPLE, etc., respondent, v. Pedro AYALA, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Laura T. Ross of counsel; James Rodriguez on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Hanophy, J.), imposed August 17, 2010, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
“When a trial court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea,” a waiver of the right to appeal is invalid (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). In the instant case, although the right to appeal was discussed separately from the other rights the defendant was forfeiting by pleading guilty, the question was insufficient to insure that the defendant grasped the distinction between rights automatically forfeited upon a plea of guilty, and the waiver of the right to appeal, especially in view of the fact that there is no written waiver in the record ( see People v. Norfort, 101 A.D.3d 756, 954 N.Y.S.2d 499; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Jefferson, 104 A.D.3d 875, 960 N.Y.S.2d 655). Accordingly, the defendant's purported waiver of his right to appeal was invalid, and does not preclude review of his excessive sentence claim.
However, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
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