People v. Marchetti

• Decision Date: 15 July 2020
• Docket Number: 2018–06201,Ind.No.1164/17
• Parties: The PEOPLE, etc., Respondent, v. Brendan J. MARCHETTI, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 839

125 N.Y.S.3d 577 (Mem)

The PEOPLE, etc., Respondent,

v.Brendan J. MARCHETTI, Appellant.

2018–06201

Ind.No.1164/17

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

Submitted—October 30, 2019

July 15, 2020

Paul Skip Laisure, New York, N.Y. (Jenin Younes of counsel), for appellant.

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

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

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gene Lopez, J.), imposed April 10, 2018, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The totality of the circumstances demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, notwithstanding that the written waiver signed by the defendant contained erroneous statements with regard to the issues encompassed by the waiver of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).

The defendant received a thorough oral explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Tovar, 177 A.D.3d 588, 588, 109 N.Y.S.3d 902 ; People v. Ayala, 172 A.D.3d 1085, 1086–1087, 100 N.Y.S.3d 334 ). The court explicitly advised the defendant that by waiving his right to appeal, he was not giving up "[his] right to take an appeal by filing notice of appeal ... within 30 days of the date of [his] sentence," and that the waiver did not encompass the loss of attendant rights to counsel and poor person relief. The court also explained to the defendant that certain claims survive the waiver of the right to appeal, including, among other things, any challenges to the voluntariness of his plea, his competency to stand trial, and the legality of his sentence. Furthermore, the court's colloquy ensured that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Carryl, 169 A.D.3d 818, 819–820, 93 N.Y.S.3d 703 ). It bears noting that the defendant, who was 29 years old at the time of the...