People v. Gil
| Decision Date | 07 August 2013 |
| Citation | 970 N.Y.S.2d 88,109 A.D.3d 484,2013 N.Y. Slip Op. 05585 |
| Parties | The PEOPLE, etc., respondent, v. Antonio GIL, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.
Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 13, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In November 2011, the defendant agreed to plead guilty to one count of criminal possession of a weapon in the second degree, in satisfaction of a multicount indictment. On the day the defendant pleaded guilty, the court told him that a condition of the plea agreement was that he waive his right to appeal. The court did not, however, explain the right to appeal until the date the defendant was sentenced, more than a month after the defendant pleaded guilty, and only after the sentence was actually pronounced. Also, the defendant's written waiver of the right to appeal was executed after the pronouncement of sentence. These circumstances do not establish that the defendantknowingly, voluntarily, and intelligently agreed to waive his right to appeal as a condition of his plea of guilty. Accordingly, the appeal waiver may not be enforced ( see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Bouton, 107 A.D.3d 1035, 1036–1037, 967 N.Y.S.2d 200).
Nonetheless, the defendant's contention that the sentence violated the Eighth Amendment prohibition against cruel and unusual punishment is unpreserved for appellate review ( see People v. Gonzales, 101 A.D.3d 1149, 1151, 956 N.Y.S.2d 555), and, in any event, is without merit ( see People v. Khan, 89 A.D.3d 750, 751–752, 932 N.Y.S.2d 107). Furthermore, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
To continue reading
Request your trial
-
People v. Williams
...to preserve for appellate review her contention that her sentences constituted cruel and unusual punishment ( see People v. Gil, 109 A.D.3d 484, 485, 970 N.Y.S.2d 88), and the record does not permit a full evaluation of the grounds on which the defendant bases this contention. We decline to......
-
People v. Henry
...after the sentence was pronounced, did not rectify the inadequate colloquy at the time the plea was entered ( see People v. Gil, 109 A.D.3d 484, 484–485, 970 N.Y.S.2d 88). We nevertheless reject defendant's contention that the court erred in refusing to suppress his statements to the police......
-
People v. Lugo
...his right to appeal as a condition of his plea of guilty (see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231 ; People v. Gil, 109 A.D.3d 484, 970 N.Y.S.2d 88 ). Accordingly, the appeal waiver may not be enforced (see People v. Finnegan, 112 A.D.3d 847, 976 N.Y.S.2d 231 ; People v. Gil......
- People v. Howard