People v. Pacheco

• Decision Date: 20 April 2016
• Citation: 28 N.Y.S.3d 627 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Robin PACHECO, appellant.
• Court: New York Supreme Court — Appellate Division

28 N.Y.S.3d 627 (Mem)

The PEOPLE, etc., respondent,

v.Robin PACHECO, appellant.

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

April 20, 2016.

Lynn W.L. Fahey, New York, N.Y., for appellant.

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

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Latella, J.), imposed July 18, 2013, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

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. The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Gordon, 127 A.D.3d 1230, 1230, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554 ). Furthermore, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea shows that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he was even aware of its contents (see People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675

).

ENG

, P.J., LEVENTHAL, DICKERSON, MILLER and DUFFY, JJ., concur.