People v. Contreras

• Decision Date: 13 May 2020
• Docket Number: Ind.No. 9343/17,2018–11654
• Citation: 121 N.Y.S.3d 665 (Mem),183 A.D.3d 759
• Parties: The PEOPLE, etc., Respondent, v. Juan CONTRERAS, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 759

121 N.Y.S.3d 665 (Mem)

The PEOPLE, etc., Respondent,

v.Juan CONTRERAS, Appellant.

2018–11654

Ind.No. 9343/17

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

Submitted—April 13, 2020

May 13, 2020

Paul Skip Laisure, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Maria Torres on the memorandum), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the sentence is affirmed.

The record does not establish 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 ). The Supreme Court mischaracterized the nature of the waiver of the right to appeal by stating that the defendant's sentence and conviction would be final (see People v. Thomas, 34 N.Y.3d –545, 561–62, 34 N.Y.3d 545, 561-62, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *8 ), and the written waiver form did not overcome the ambiguities in the court's explanation of the waiver of the right to appeal as it did not contain clarifying language that appellate review remained available for select issues (see id. ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Fuller, 163 A.D.3d 715, 715, 76 N.Y.S.3d 852 ).

In any event, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.