PEOPLE v. JOHNSON (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered March 31, 2022, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In this case, the defendant signed a written waiver of the right to appeal in open court.  The Supreme Court advised the defendant orally that “By signing this waiver, Mr. Johnson, do you understand that you are giving up some, not all, of your rights to contest the legality and sufficiency of your conviction in this case at [a] later date to a higher level judge?” and he replied, “Yes, I do.”  That was the only explanation by the court of the rights the defendant was waiving.

Under the totality of the circumstances of this case, including the defendant's limited contact with the criminal justice system, the record does not ensure that the defendant understood the nature of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Nathaniel B., 232 A.D.3d 803, 222 N.Y.S.3d 138;  People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297).  Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim (see People v. Wiltshire, 199 A.D.3d 1025, 154 N.Y.S.3d 788 ;  People v. Coverdale, 189 A.D.3d 1610, 1610, 136 N.Y.S.3d 335).  Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

Although the defendant had the opportunity to object to the duration of the order of protection issued at the time of sentencing, he declined to do so.  Therefore, his contention in that regard is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v. Person, 233 A.D.3d 804, 221 N.Y.S.3d 671).

BARROS, J.P., CHAMBERS, WARHIT and GOLIA, JJ., concur.