PEOPLE v. MOYE (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (John B. Latella, J.), imposed November 7, 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 did not validly waive his right to appeal the severity of the sentence (see People v. Boswell, 35 A.D.3d 1218, 825 N.Y.S.2d 896;  see generally People v. DeYoung, 95 A.D.3d 71, 940 N.Y.S.2d 306).  During the plea allocution, the Supreme Court expressly excluded the sentence from the waiver of the right to appeal by telling the defendant that he was giving up the right to appeal with the exception of, among other things, the length of his sentence.  Moreover, although the defendant concedes that he signed a written waiver indicating that he waived the right to appeal the severity of the sentence, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal” (People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645;  see People v. Brown, 122 A.D.3d 133, 139, 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.