PEOPLE v. WILSON (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew J. D'Emic, J.), imposed April 26, 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 nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Brown, 122 A.D.3d 133, 137–138, 141, 992 N.Y.S.2d 297).  Moreover, although the record reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether he 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, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (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).

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., MASTRO, ROMAN, LASALLE and CHRISTOPHER, JJ., concur.