People v. Brown

• Decision Date: 19 June 2019
• Docket Number: Ind. No. 8094/15,2017–04830
• Citation: 173 A.D.3d 1060,100 N.Y.S.3d 891 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Patrick BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1060

100 N.Y.S.3d 891 (Mem)

The PEOPLE, etc., Respondent,

v.Patrick BROWN, Appellant.

2017–04830

Ind. No. 8094/15

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

Submitted—January 23, 2019

June 19, 2019

Paul Skip Laisure, New York, N.Y. (Anna Kou of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel; Ruby D. Andrade on the memorandum), for respondent.

LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Bruce M. Balter, J.), imposed January 11, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see also People v. Jones, 158 A.D.3d 775, 68 N.Y.S.3d 769 ; People v. Policastro, 142 A.D.3d 679, 36 N.Y.S.3d 827 ). Given the defendant's inexperience with the criminal justice system, the Supreme Court's terse colloquy at the plea allocution as to the waiver of his right to appeal was insufficient. Further, the court lumped the waiver of the right to appeal into the panoply of rights normally forfeited upon a plea of guilty, rendering the waiver unintelligent, unknowing, and involuntary (see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; cf. People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). Thus, the defendant's purported waiver of his right to appeal does not preclude appellate 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 ).

AUSTIN, J.P., LEVENTHAL, COHEN, BARROS and CHRISTOPHER, JJ., concur.