People v. Cortez

• Citation: 71 N.Y.S.3d 887 (Mem),160 A.D.3d 893
• Decision Date: 18 April 2018
• Docket Number: 2016–13395,S.C.I. No. 2294/15
• Parties: The PEOPLE, etc., respondent, v. Erick CORTEZ, appellant.
• Court: New York Supreme Court Appellate Division

160 A.D.3d 893
71 N.Y.S.3d 887 (Mem)

The PEOPLE, etc., respondent,
v.
Erick CORTEZ, appellant.

2016–13395
S.C.I. No. 2294/15

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

Submitted—January 26, 2018
April 18, 2018

Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Jimei L. Hon of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin–Brandt, J., at plea; Stephanie Zaro, J., at sentence), imposed March 7, 2016, sentencing him to a definite term of imprisonment of one year upon his conviction of attempted grand larceny in the second degree, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the definite term of imprisonment from one year to 364 days.

Under the circumstances of this case, the defendant's waiver of the right to appeal was invalid (see People v. Laboy, 153 A.D.3d 1363, 59 N.Y.S.3d 898 ). The plea court's terse oral colloquy regarding the waiver of the right to appeal was insufficient, by itself, to ensure that the waiver was made knowingly, intelligently, and voluntarily (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ). Although the Spanish-speaking defendant signed a written waiver, the document was in English and there is no indication that it was read or thoroughly explained to him (see People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ). Accordingly, we reach the merits of the defendant's excessive sentence claim.

Considering all of the relevant circumstances of this case, including the potential immigration consequences to the defendant, we conclude that his sentence should be reduced by one day (see People v....