PEOPLE v. DAGRACA (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew Sciarrino, Jr., J.), imposed July 16, 2015, upon his plea of guilty, on the ground that the period of probation supervision imposed was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Little, 127 A.D.3d 1235, 1235–1236, 5 N.Y.S.3d 896;  People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297).  The Supreme Court did not confirm that the defendant understood the nature of the right to appeal and the consequences of waiving that right (see People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297).  Although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, no written waiver was included in the papers filed with this Court.  Moreover, the court did not ascertain on the record whether the defendant had read the waiver or whether he was aware of its contents (see People v. Iovino, 142 A.D.3d 561, 561–562, 36 N.Y.S.3d 216;  People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297).  Under the circumstances, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297).

However, the 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.