People v. Medina, 2016–04758

• Court: New York Supreme Court Appellate Division
• Citation: 76 N.Y.S.3d 629,161 A.D.3d 778
• Decision Date: 02 May 2018
• Parties: The PEOPLE, etc., respondent, v. Jordan MEDINA, appellant.
• Docket Number: Ind.No. 7697/15,2016–04758

161 A.D.3d 778
76 N.Y.S.3d 629

The PEOPLE, etc., respondent,
v.
Jordan MEDINA, appellant.

2016–04758
Ind.No. 7697/15

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

May 2, 2018

76 N.Y.S.3d 630

Seymour W. James, Jr., New York, N.Y. (Whitney A. Robinson of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Terrence Heller of counsel; Aleena R. Peerzada on the memorandum), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

SCHEINKMAN, P.J., DILLON, MILLER, HINDS–RADIX and IANNACCI, JJ., concur.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin Murphy, J.), imposed April 1, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

On appeal, the defendant contends that his sentence of 2½ to 5 years' imprisonment on his conviction of burglary in the third degree was excessive. The People argue that the defendant's contention is precluded by the defendant's waiver of his right to appeal.

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.

A waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( id. at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Although the Court of Appeals has "repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal

76 N.Y.S.3d 631

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