People v. Little

• Citation: 5 N.Y.S.3d 896 (Mem),2015 N.Y. Slip Op. 03567,127 A.D.3d 1235
• Parties: The PEOPLE, etc., respondent, v. Elijah LITTLE, appellant.
• Decision Date: 29 April 2015
• Court: New York Supreme Court Appellate Division

127 A.D.3d 1235

5 N.Y.S.3d 896 (Mem)

2015 N.Y. Slip Op. 03567

The PEOPLE, etc., respondent

v.Elijah LITTLE, appellant.

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

April 29, 2015.

Seymour W. James, Jr., New York, N.Y. (Eve Kessler of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and

Linda Breen of counsel; Robert Ho on the memorandum), for respondent.

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County, (Jeong, J.), imposed January 23, 2013, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid. The record fails to establish that the defendant's purported waiver of his right to appeal was knowing, voluntary, and intelligent (see People v. Bradshaw, 18 N.Y.3d 257, 272–273, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record (id. at 264–265, 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 ). Here, the trial court's statement to the defendant that he was giving up his right to appeal, followed by its inquiry as to whether his attorney had explained that right to him, was insufficient to demonstrate a valid waiver (see People v. Brown, 122 A.D.3d 133, 141, 992 N.Y.S.2d 297 ; People v. Oquendo, 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 ; People v. Vasquez, 101 A.D.3d 1054, 1054–1055, 956 N.Y.S.2d 171 ; People v. Boustani, 300 A.D.2d 313, 314, 752 N.Y.S.2d 683 ). The defendant's execution of a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” (People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 [emphasis added]; see People v. Brown, 122 A.D.3d at 138–139, 992 N.Y.S.2d 297 ; People v. Crawford, 110 A.D.3d 916, 916, 977 N.Y.S.2d 37 ).

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

ENG, P.J., SKELOS, LEVENTHAL, ROMAN and DUFFY, JJ., concur.