PEOPLE v. DEAS (2024)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Laura R. Johnson, J.), imposed April 13, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid.  “The trial courts must be sure to obtain, on the record, an affirmative response from the defendant that he or she understands the rights as explained, that the defendant is giving up those rights, and that the defendant is doing so voluntarily after discussing same with counsel” (People v. Brown, 122 A.D.3d 133, 144–145, 992 N.Y.S.2d 297).  The Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Habersham, 186 A.D.3d 854, 854–855, 127 N.Y.S.3d 775;  People v. Kang, 183 A.D.3d 640, 641, 121 N.Y.S.3d 640).  Moreover, the court did not clearly ascertain on the record that defense counsel discussed the right to appeal with the defendant (see People v. Ayala, 146 A.D.3d 966, 966, 45 N.Y.S.3d 219).  Although the record contains a written waiver of the right to appeal, “ ‘[t]he 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. Etienne, 152 A.D.3d 790, 790, 59 N.Y.S.3d 427, quoting People v. Cuevas–Alcantara, 136 A.D.3d 650, 650, 23 N.Y.S.3d 902 [internal quotation marks omitted]).  The court also failed to confirm on the record that the defendant understood the contents of the written waiver (see People v. Hopkins, 227 A.D.3d 734, 209 N.Y.S.3d 569, 2024 N.Y. Slip Op. 02332 [2d Dept.]), and did not discuss the appeal waiver with the defendant until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Heft, 220 A.D.3d 806, 196 N.Y.S.3d 177;  People v. Blake, 210 A.D.3d 901, 901, 178 N.Y.S.3d 201).  Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

Nonetheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BRATHWAITE NELSON, J.P., CHRISTOPHER, FORD and LANDICINO, JJ., concur.