Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., Respondent, v. Abdourahman SECK, Appellant.
Decided: December 12, 2018
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.
Paul Skip Laisure, New York, N.Y. (Melissa Lee of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
DECISION & ORDER
ORDERED that the sentence is affirmed.
Initially, the People's contention that the defendant's appeal must be dismissed pursuant to CPL 450.10(1) is without merit (see People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541; see also People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100).
“A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645). A waiver is ineffective where “the court mischaracterizes the nature of the right to appeal, commingles appellate rights with rights that survive a plea, and engages in a colloquy consisting of a one-word response to whether the defendant understood the conditions of the plea, or where defendant, notwithstanding a written waiver, never orally confirmed that defendant grasped the concept of the appeal waiver and the nature of the right defendant was forgoing” (People v. Leach, 26 N.Y.3d 1154, 1155, 28 N.Y.S.3d 355, 48 N.E.3d 497 [Rivera, J., concurring] [citations, internal quotation marks, and brackets omitted]; see People v. Bradshaw, 18 N.Y.3d at 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
Here, although the Supreme Court stated that the waiver of the right to appeal was a separate and distinct issue, the court did not explain the nature of the right to appeal, and instead improperly relied upon defense counsel's statement that he explained a written waiver to the defendant. The defendant himself did not acknowledge that his attorney explained the written waiver to him, but indicated that he conducted his own research. When asked by the court whether he read the written waiver, the defendant responded, “Real quick.” Thus, the record does not evince that the defendant's waiver of the right to appeal was made knowingly, intelligently, and voluntarily (see People v. Bradshaw, 18 NY3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see also People v. Marrero, 153 A.D.3d 1364, 59 N.Y.S.3d 905; People v. Plair, 119 A.D.3d 877, 989 N.Y.S.2d 394). Since the defendant's purported waiver of his right to appeal was invalid, it does not preclude review of his excessive sentence claim.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
LEVENTHAL, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
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