People v. Gordon

• Decision Date: 29 April 2015
• Docket Number: 2008-07316, Ind. No. 128/08.
• Citation: 127 A.D.3d 1230,5 N.Y.S.3d 900 (Mem),2015 N.Y. Slip Op. 03562
• Parties: The PEOPLE, etc., respondent, v. Christopher GORDON, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1230

5 N.Y.S.3d 900 (Mem)

2015 N.Y. Slip Op. 03562

The PEOPLE, etc., respondent

v.Christopher GORDON, appellant.

2008-07316, Ind. No. 128/08.

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

April 29, 2015.

Lynn W.L. Fahey, New York, N.Y., for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Paul M. Tarr of counsel), for respondent.

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Rienzi, J.), imposed July 16, 2008, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid.

The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554 ; People v. Jacob, 94 A.D.3d 1142, 1143, 942 N.Y.S.2d 627 ; People v. Mayo, 77 A.D.3d 683, 683–684, 908 N.Y.S.2d 353 ; People v. Olivier, 48 A.D.3d 486, 486, 849 N.Y.S.2d 790 ). Furthermore, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea shows that “[t]he court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents” (People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Accordingly, “despite [the] defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently, or voluntarily waive his right to appeal as the record fails to demonstrate a ‘full appreciation of the consequences of such waiver’ ” (People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172, quoting People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Cantarero, 123 A.D.3d at 841, 996 N.Y.S.2d 724 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ; People v. Vasquez, 101 A.D.3d 1054, 1054–1055, ...