People v. Evans, 2017–08703

• Decision Date: 13 February 2019
• Docket Number: S.C.I. No. 1238/17,2017–08703
• Citation: 169 A.D.3d 824,92 N.Y.S.3d 680 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Vincent M. EVANS, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 824

92 N.Y.S.3d 680 (Mem)

The PEOPLE, etc., Respondent,

v.Vincent M. EVANS, Appellant.

2017–08703

S.C.I. No. 1238/17

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

Submitted - November 28, 2018

February 13, 2019

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel; Kristin Rainis on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, 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.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 ; People v. Brown , 122 A.D.3d 133, 992 N.Y.S.2d 297 ). The Supreme Court conflated the waiver of the right to appeal with the defendant's waiver of his right to a trial by pleading guilty, and failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Brown , 122 A.D.3d at 142, 992 N.Y.S.2d 297 ). Although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, his signature does not, by itself, establish that the waiver was made knowingly, intelligently, and voluntarily (see id. at 138–139, 992 N.Y.S.2d 297 ). Thus, the purported waiver does not preclude review of his excessive sentence claim (see People v. Fuller , 163 A.D.3d 715, 715, 76 N.Y.S.3d 852 ).

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

MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.