PEOPLE v. PRUDE (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed January 24, 2017, upon his plea of guilty, on the ground that the sentence 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, 264, 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 record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Kupershmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139;  People v. Burnett–Hicks, 133 A.D.3d 773, 19 N.Y.S.3d 181).  Moreover, although the defendant executed a written appeal waiver form, the Supreme Court failed to 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. 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).  Thus, the waiver does not preclude review of the defendant's 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).

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