PEOPLE v. DIXON (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from an amended sentence of the Supreme Court, Queens County (Douglas Wong, J.), imposed September 6, 2016, revoking a sentence of probation previously imposed by the same court (John Zoll, J.), upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal possession of a forged instrument in the second degree on the ground that the amended sentence was excessive.

ORDERED that the amended sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid, as the Supreme Court's limited colloquy did not ensure that the defendant understood the distinction of the right to appeal from the other rights automatically forfeited upon entering a plea of guilty (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297;  People v. Johnson, 109 A.D.3d 1004, 971 N.Y.S.2d 469).  Moreover, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether the defendant was even aware of its contents (see People v. Santeramo, 153 A.D.3d 1286, 1287, 61 N.Y.S.3d 295;  People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297).  Under the circumstances here, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and thus, the waiver does not preclude review of this excessive sentence claim (see People v. Johnson, 157 A.D.3d 964, 965, 67 N.Y.S.3d 492;  People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297).  However, the amended sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.