People v. Black

• Decision Date: 16 November 2016
• Citation: 41 N.Y.S.3d 126,2016 N.Y. Slip Op. 07670,144 A.D.3d 935
• Parties: The PEOPLE, etc., respondent, v. Marvin BLACK, appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 935

41 N.Y.S.3d 126

2016 N.Y. Slip Op. 07670

The PEOPLE, etc., respondent,

v.Marvin BLACK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 16, 2016.

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

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Lorrie A. Zinno on the brief), for respondent.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, L. PRISCILLA HALL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered January 30, 2014, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant is correct that his waiver of the right to appeal is unenforceable. The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ; People v. Gordon, 127 A.D.3d 1230, 1230, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554 ). Furthermore, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was aware of its contents (see People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ; see also People v. Pacheco, 138 A.D.3d at 1036, 28 N.Y.S.3d 627). Under the circumstances here, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

The defendant's contention that the Supreme Court improperly imposed certain orders of protection at the time of sentencing is unpreserved for appellate review (see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Deal, 115 A.D.3d 975, 977, 982 N.Y.S.2d 388 ), and we decline to exercise our interest of justice...