People v. Tovar

• Decision Date: 06 November 2019
• Docket Number: Ind. No. 2033/17,2018-02113
• Citation: 109 N.Y.S.3d 902 (Mem),177 A.D.3d 588
• Parties: The PEOPLE, etc., respondent, v. Tomas TOVAR, appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 588

109 N.Y.S.3d 902 (Mem)

The PEOPLE, etc., respondent,

v.Tomas TOVAR, appellant.

2018-02113

Ind. No. 2033/17

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

Submitted - September 25, 2019

November 6, 2019

Paul Skip Laisure, New York, N.Y. (Angad Singh of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Ellen C. Abbot of counsel; Kristina A. D'Angelo on the memorandum), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, 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 January 9, 2018, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record of the plea proceeding demonstrates that the defendant received a thorough oral explanation of the nature of the right to appeal and the consequences of waiving that right, and that he understood that the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Li, 169 A.D.3d 828, 93 N.Y.S.3d 706 ; People v. Batista, 167 A.D.3d 69, 75–76, 86 N.Y.S.3d 492 ; People v. Leak, 164 A.D.3d 606, 82 N.Y.S.3d 145 ; People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). Although the preprinted form waiver of the right to appeal signed by the defendant contained erroneous statements with regard to the waiver of the right to appeal (see People v. Batista, 167 A.D.3d 69, 75, 86 N.Y.S.3d 492 ; see also People v. Payton, 109 A.D.3d 940, 971 N.Y.S.2d 462 ; People v. Mizhirumbay–Guaman, 109 A.D.3d 668, 970 N.Y.S.2d 876 ), under the circumstances of this case, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.