PEOPLE v. BRISEE (2021)

ORDERED that the sentence is affirmed.

Defendant initially was charged in a felony complaint with attempted burglary in the third degree (Penal Law §§ 110.00, 140.20), a class E felony. Defendant subsequently entered into a plea agreement by which the charge was properly reduced to the class A misdemeanor charge of trespass in the second degree (Penal Law § 140.15), to which defendant pleaded guilty in exchange for a sentence of three years’ probation. By this plea agreement, defendant also resolved three other, separately-docketed, unrelated criminal matters pending against him.

Defendant executed a waiver of appeal, but, as the People rightly concede, the waiver was infirm. Both the prosecutor, who conducted the plea allocution, and the court “failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, but that in this case he was being asked to voluntarily relinquish that right as a condition of the plea agreement”(People v Mojica, 178 AD3d 856, 856-857 [2019]). Under such circumstances, “an appellate court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights” (People v Thomas, 34 NY3d 545, 565-566 [2019] [internal quotation marks omitted]; see People v Harris, 175 AD3d 1555, 1557 [2019] [“the record does not demonstrate that [ ] 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”]).

Defendant's claim that the Justice Court deprived him of his statutory “right to make a statement personally in his ․ own behalf” (CPL 380.50 [1]) is unpreserved for appellate review (see People v Nieves, 2 NY3d 310, 315-316 [2004]; People v Ospina, 175 AD3d 513, 515 [2019]). In any event, his claim is belied by the record, which reflects that, prior to sentencing defendant, the court asked him if there was “anything you'd like to say,” to which defendant responded, “I'm confident that ․ I will not do anything that would risk [being resentenced to] jail” by violating the conditions of probation. This dialogue demonstrates clearly that the Justice Court more than “substantially complied with the requirements of CPL 380.50” (People v Martinez-Galdamez, 193 AD3d 764, 765 [2021]; see People v McClain, 35 NY2d 483, 488 [1974] [“While there was not conformity with the literal dictates of (CPL 380.50), we nonetheless conclude that there was substantial compliance”]).

Defendant's sentence also was not excessive, as “there has been no abuse of discretion and we perceive neither a failure to observe sentencing principles nor a need to impose a different view of discretion than that of the sentencing Judge” (People v Suitte, 90 AD2d 80, 86 [1982]). In light of the fact that “defendant pleaded guilty with the full understanding that he would receive the sentence actually imposed ․, he has no basis now to complain that the sentence imposed is excessive” (People v Galvez, 72 AD3d 838, 838 [2010]), especially since “defendant has not demonstrated the existence of mitigating or extraordinary circumstances” that would warrant a finding of excessiveness (People v Bacchus, 52 Misc 3d 140[A], 2016 NY Slip Op 51168[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], citing People v Farrar, 52 NY2d 302 [1982]; People v Vega, 73 AD3d 1218 [2010]; Suitte, 90 AD2d 80). Quite the opposite, defendant accepted the sentence of probation as part of a very favorable plea deal, negotiated by two defense attorneys representing him, by which he avoided a felony prosecution in this case, and that resulted in the resolution of a total of four criminal matters pending against him, all without having to serve any jail time.

Accordingly, the sentence is affirmed.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.