People v. Clark

• Decision Date: 18 June 2014
• Citation: 987 N.Y.S.2d 239,118 A.D.3d 905,2014 N.Y. Slip Op. 04509
• Parties: The PEOPLE, etc., respondent, v. Jonathan CLARK, appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 905

987 N.Y.S.2d 239

2014 N.Y. Slip Op. 04509

The PEOPLE, etc., respondent,

v.Jonathan CLARK, appellant.

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

June 18, 2014.

Lynn W.L. Fahey, New York, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Merri Turk Lasky 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 (Holder, J.), imposed November 27, 2012, upon his plea of guilty, 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, the Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was foregoing” ( People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;see People v. Grant, 83 A.D.3d 862, 862–863, 921 N.Y.S.2d 285;People v. Pelaez, 100 A.D.3d 803, 804, 954 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, 684, 908 N.Y.S.2d 353;cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Therefore, “notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” ( People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;People v. Vasquez, 101 A.D.3d 1054, 956 N.Y.S.2d 171).

Nevertheless, contrary to the defendant's contention, the period of postrelease supervision imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

ENG, P.J., MASTRO, DICKERSON, LOTT and MILLER, JJ., concur.