PEOPLE v. HONG MO LIN (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Joseph Gubbay, J.), imposed September 28, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645).  Although the defendant signed a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Fukienese language interpreter, before it was presented to him for signature (see People v. Perez, 160 A.D.3d 901, 75 N.Y.S.3d 95;  People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372).  The Supreme Court's terse colloquy failed to advise the defendant of the nature of the right to appeal, and suggested that waiving the right to appeal was mandatory, rather than a right that the defendant was being asked to voluntarily relinquish (see People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295;  People v. Guarchaj, 122 A.D.3d at 879, 996 N.Y.S.2d 372).  There is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty (see People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295;  People v. Black, 144 A.D.3d 935, 935, 41 N.Y.S.3d 126).  Under these circumstances, and given the defendant's inexperience with the criminal justice system and his mental health history and background (see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Conley, 150 A.D.3d 1023, 1023, 55 N.Y.S.3d 320;  cf. People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344), the defendant's appeal waiver was invalid and does not preclude review of his excessive sentence claim.

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

LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.