People v. Burnett-Hicks
| Decision Date | 18 November 2015 |
| Citation | 2015 N.Y. Slip Op. 08429,133 A.D.3d 773,19 N.Y.S.3d 181 (Mem) |
| Parties | The PEOPLE, etc., respondent, v. Lynda BURNETT–HICKS, appellant. |
| Court | New York Supreme Court — Appellate Division |
133 A.D.3d 773
19 N.Y.S.3d 181 (Mem)
2015 N.Y. Slip Op. 08429
The PEOPLE, etc., respondent,
v.
Lynda BURNETT–HICKS, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 18, 2015.
Seymour W. James, Jr., New York, N.Y. (Ellen Dilleof counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Jobloveand Linda Breenof counsel), for respondent.
OpinionAppeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (Murphy, J.), imposed December 15, 2011, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez,6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of her right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. George,131 A.D.3d 623, 14 N.Y.S.3d 905; People v. Bennett,115 A.D.3d 973, 973, 982 N.Y.S.2d 554; People v. Jacob,94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627; People v. Mayo,77 A.D.3d 683, 683–684, 908 N.Y.S.2d 353; People v. Olivier,48 A.D.3d 486, 486, 849 N.Y.S.2d 790; cf. People v. Sanders,25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344). Although the defendant executed a written waiver of her right to appeal, the Supreme Court's colloquy amounted to nothing more than “a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily” (People v. Brown,122 A.D.3d 133, 140, 992 N.Y.S.2d 297; see People v. Cantarero,123 A.D.3d 841, 841, 996 N.Y.S.2d 724; People v. Quezada,122 A.D.3d 948, 948, 997 N.Y.S.2d 475; People v. Reyes,121 A.D.3d 820, 821, 993 N.Y.S.2d 379). Under the circumstances...
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...conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily’ " ( People v. Burnett–Hicks, 133 A.D.3d 773, 774, 19 N.Y.S.3d 181, quoting People v. Brown, 122 A.D.3d at 140, 992 N.Y.S.2d 297 ; see People v. Guniss, 160 A.D.3d 895, 896, 75 N.Y.S.......
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