People v. Cantarero

• Decision Date: 10 December 2014
• Docket Number: 2012-00776
• Citation: 996 N.Y.S.2d 724,2014 N.Y. Slip Op. 08658,123 A.D.3d 841
• Parties: The PEOPLE, etc., respondent, v. Manuel CANTARERO, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 841

996 N.Y.S.2d 724

2014 N.Y. Slip Op. 08658

The PEOPLE, etc., respondent

v.Manuel CANTARERO, appellant.

2012-00776

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

Dec. 10, 2014.

Seymour W. James, Jr., New York, N.Y. (Adrienne Gantt of counsel; George Brandley on the memorandum), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel; Robert Ho on the memorandum), for respondent.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, L. PRISCILLA HALL, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Murphy, J.), imposed December 16, 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 his right to appeal was invalid. There is no indication in the record 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. 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 ). Furthermore, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding fails to show that the defendant understood “the nature of the right to appeal and the consequences of waiving it” when he executed the written waiver (People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). Under the circumstances here, we conclude that 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 ; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46 ).

Nevertheless, contrary to the defendant's...