People v. Waldon, 2016–02482

• Court: New York Supreme Court Appellate Division
• Citation: 157 A.D.3d 913,66 N.Y.S.3d 906 (Mem)
• Docket Number: Ind. No. 2700/15,2016–02482
• Parties: The PEOPLE, etc., respondent, v. William WALDON, appellant.
• Decision Date: 24 January 2018

157 A.D.3d 913
66 N.Y.S.3d 906 (Mem)

The PEOPLE, etc., respondent,
v.
William WALDON, appellant.

2016–02482
Ind. No. 2700/15

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

Submitted—November 24, 2017
January 24, 2018

Paul Skip Laisure, New York, N.Y. (Nao Terai of counsel), for appellant.

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

CHERYL E. CHAMBERS, J.P. SANDRA L. SGROI JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

157 A.D.3d 913

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed January 13, 2016, upon his plea of guilty, on the ground that the sentence is 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 reviewing the sentence because the defendant's purported waiver of his right to appeal was invalid. During the plea allocution, the Supreme

66 N.Y.S.3d 907

Court incorrectly informed the defendant that "by giving up the right to appeal you will be able to challenge any legal rulings in the case, such as suppression issues or excessive sentence." Moreover, the Supreme Court's statements improperly suggested that the waiver of the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ; People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ). In addition,

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