Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., respondent, v. Devonte GUNISS, appellant.
Decided: April 18, 2018
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
Seymour W. James, Jr., New York, N.Y. (Allen Fallek of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel; Marielle Burnett on the memorandum), for respondent.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed March 15, 2016, upon his plea of guilty, on the ground that the sentence was 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 exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Kuperschmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139; People v. Burnett–Hicks, 133 A.D.3d 773, 19 N.Y.S.3d 181). Moreover, although the Supreme Court indicated that the defendant executed a written waiver of his right to appeal, the written waiver is not contained in the record on appeal. In any event, the court's colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver (see People v. Burnett–Hicks, 133 A.D.3d 773, 774, 19 N.Y.S.3d 181; People v. Brown, 122 A.D.3d 133, 140, 992 N.Y.S.2d 297). Under the circumstances here, we conclude that the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Johnson, 157 A.D.3d 964, 965, 67 N.Y.S.3d 492; People v. Smith, 156 A.D.3d 944, 66 N.Y.S.3d 140; People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS–RADIX and MALTESE, JJ., concur.
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