People v. Kang

• Decision Date: 06 May 2020
• Docket Number: 2018–11841,Ind. No. 237/18
• Citation: 183 A.D.3d 640,121 N.Y.S.3d 640 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Scott KANG, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 640

121 N.Y.S.3d 640 (Mem)

The PEOPLE, etc., Respondent,

v.Scott KANG, Appellant.

2018–11841

Ind. No. 237/18

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

Submitted—April 13, 2020

May 6, 2020

Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Lorrie A. Zinno on the memorandum), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v. Thomas , 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545 [2019] ; People v. Bradshaw , 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez , 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The Supreme Court's colloquy failed to sufficiently advise the defendant of the nature of his right to appeal, and to assure that the defendant understood the distinction between the waiver of his right to appeal and other rights automatically forfeited upon a plea of guilty (see People v. Weeks , 182 A.D.3d 539, ––––, 122 N.Y.S.3d 347, 2020 N.Y. Slip Op. 02198, *1–2 [2d Dept. 2020] ; People v. Smalls , 178 A.D.3d 738, 738–739, 111 N.Y.S.3d 210 [2019] ; People v. Birch , 171 A.D.3d 938, 939, 97 N.Y.S.3d 222 [2019] ). In addition, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Birch , 171 A.D.3d at 938, 97 N.Y.S.3d 222 ; People v. Pelaez , 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 [2012] ). Although the record includes a written waiver of the right to appeal that was purportedly signed by the defendant three days prior to the plea proceeding, the court failed to ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Weeks , 182 A.D.3d at ––––, 122 N.Y.S.3d at 348–49, 2020 N.Y. Slip Op., *1–2 ; People v. Smalls , 178 A.D.3d at 739, 111 N.Y.S.3d 210 ; People v. Birch , 171 A.D.3d at 939, 97 N.Y.S.3d 222 ). Under these circumstances, and given the defendant's significant mental health history, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim (see People v. Bradshaw , 18 N.Y.3d at 266, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Smalls , 178 A.D.3d at 739, 111 N.Y.S.3d 210 ; People v. Farrell , 169 A.D.3d 919, 920, 94 N.Y.S.3d 164 [2019] ; People v. Brown , 167 A.D.3d 929, 87 N.Y.S.3d 903 [2018] ).

However, the sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 [1982[ ).

BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN...