PEOPLE v. PITTMAN (2008)

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Holdman, J.), imposed July 13, 2006, upon his conviction of criminal possession of a weapon in the third degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of seven years and a period of post-release supervision of three years.

 ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment of 7 years to a determinate term of imprisonment of 3 years and by reducing the period of post-release supervision of 3 years to a period of post-release supervision of 1 1/212 years.

 The defendant was incorrectly informed, in a preprinted waiver form, that his right to appeal did not include the right to appellate review of his sentence on the ground that it was excessive (see People v. Hurd, 44 A.D.3d 791, 792, 844 N.Y.S.2d 73, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880).   Therefore, the purported waiver of his right to appeal cannot be considered knowing, voluntary, and intelligent (see People v. Hale, 30 A.D.3d 613, 614, 820 N.Y.S.2d 515;  People v. Rose, 236 A.D.2d 637, 654 N.Y.S.2d 693;  People v. Rolon, 220 A.D.2d 543, 632 N.Y.S.2d 208).

In light of all of the circumstances of this case, the sentence imposed is excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 83-87, 455 N.Y.S.2d 675).