People v. De La Rosa

• Decision Date: 15 March 2017
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Ana DE LA ROSA, appellant.

148 A.D.3d 927
48 N.Y.S.3d 606 (Mem)

The PEOPLE, etc., respondent,
v.
Ana DE LA ROSA, appellant.

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

March 15, 2017.

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel; Jacob Wells on the memorandum), for respondent.

Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Buchter, J.), imposed September 4, 2012, upon her plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of her right to appeal was invalid, as the record fails to establish that she knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 272–273, 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 ; People v. Cuevas–Alcantara, 136 A.D.3d 650, 23 N.Y.S.3d 902 ; People v. Little, 127 A.D.3d 1235, 5 N.Y.S.3d 896 ; People v. Quezada, 122 A.D.3d 948, 997 N.Y.S.2d 475 ). "An appeal waiver is not valid unless the defendant's understanding of the waiver is evident on the face of the record" (People v. Little, 127 A.D.3d at 1235, 5 N.Y.S.3d 896 ; see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of

48 N.Y.S.3d 607

waiving it (see People v. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902; People v. Cantarero, 123 A.D.3d 841, 842, 996 N.Y.S.2d 724 ). Moreover, 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. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902, quoting People v. Bradshaw, 76 A.D.3d 566, 569, 906...