People v. Ortiz

• Decision Date: 05 December 2018
• Docket Number: 2016–05111,Ind.No. 1335/14
• Citation: 167 A.D.3d 658,86 N.Y.S.3d 914 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Anthony ORTIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 658

86 N.Y.S.3d 914 (Mem)

The PEOPLE, etc., Respondent,

v.Anthony ORTIZ, Appellant.

2016–05111

Ind.No. 1335/14

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

Submitted - September 26, 2018

December 5, 2018

The Legal Aid Society, New York, N.Y. (Justine M. Luongo and Desiree Sheridan of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

ORDERED that the sentence is affirmed.

The defendant's purported waiver of the right to appeal was invalid (see People v. Bradshaw , 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Little , 127 A.D.3d 1235, 1235–1236, 5 N.Y.S.3d 896 ; People v. Brown , 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ). When the Supreme Court explained the defendant's waiver of his right to appeal to him, it improperly conflated the right to appeal with the rights automatically forfeited by a plea of guilty (see People v. Diaz , 146 A.D.3d 803, 804, 46 N.Y.S.3d 627 ; People v. Wells , 135 A.D.3d 976, 22 N.Y.S.3d 913 ; People v. Bond , 109 A.D.3d 481, 969 N.Y.S.2d 923 ). As such, the record does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Crochran , 164 A.D.3d 598, 78 N.Y.S.3d 692 ). Moreover, although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, no written waiver is contained in the record on appeal (see People v. Zirkel , 164 A.D.3d 846, 846, 79 N.Y.S.3d 575 ). While the defendant acknowledged, in response to the court's inquiry, that the written waiver had been translated from English to Spanish, the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel (see People v. Iovino , 142 A.D.3d 561, 561–562, 36 N.Y.S.3d 216 ; People v. Brown , 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Under the circumstances, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Crochran , 164 A.D.3d 598, 78 N.Y.S.3d 692 ; People v. Johnson , 157 A.D.3d 964, 965, 67 N.Y.S.3d 492 ; People v. Brown , 122 A.D.3d 133, 992 N.Y.S.2d 297 ).

Nevertheless, the sentence imposed was not excessive (see People v....