People v. Cruz

• Decision Date: 13 November 2019
• Docket Number: Ind. No. 636/17,2018–09011
• Citation: 110 N.Y.S.3d 312 (Mem),177 A.D.3d 766
• Parties: The PEOPLE, etc., Respondent, v. Robert CRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 766

110 N.Y.S.3d 312 (Mem)

The PEOPLE, etc., Respondent,

v.Robert CRUZ, Appellant.

2018–09011

Ind. No. 636/17

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

Submitted—September 9, 2019

November 13, 2019

Janet E. Sabel, New York, N.Y. (Ellen Dille of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Manipal Singh on the memorandum), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The record of the plea proceeding fails to establish that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Dunn, 167 A.D.3d 651, 652, 86 N.Y.S.3d 916 ). Although the defendant signed a written waiver of his right to appeal, the Supreme Court failed to obtain confirmation that the defendant had read the document before signing it and that he understood it (see People v. Bradley, 167 A.D.3d 768, 87 N.Y.S.3d 513 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Nevertheless, 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, MALTESE and CHRISTOPHER, JJ., concur.