PEOPLE v. CRUZ

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Rudy Garcia CRUZ, a/k/a Ruben Santos, appellant.

Decided: September 23, 2008

PETER B. SKELOS, J.P., JOSEPH COVELLO, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ. Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Brennan, J.), both rendered August 15, 2006, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Indictment No. 13830/92, and criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Indictment No. 600/93, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

 Contrary to the People's contention, the defendant's purported waiver of his right to appeal cannot be considered knowing, voluntary, and intelligent, as the defendant was incorrectly informed, in a preprinted waiver form, that his right to appeal did not include the right to appellate review of his sentence on the ground that it was excessive (see People v. Hurd, 44 A.D.3d 791, 792, 844 N.Y.S.2d 73).   Accordingly, we have considered the defendant's contention that the sentences imposed constituted cruel and unusual punishment, but find that contention to be without merit.   There are no exceptional circumstances warranting modification of the sentences, which were within permissible statutory limits (see People v. Jones, 39 N.Y.2d 694, 697, 385 N.Y.S.2d 525, 350 N.E.2d 913;  People v. Brathwaite, 263 A.D.2d 89, 92, 703 N.Y.S.2d 191;  see also People v. Peterson, 155 A.D.2d 487, 488, 547 N.Y.S.2d 571;  People v. Martinez, 151 A.D.2d 509, 542 N.Y.S.2d 298;  People v. DeMent, 144 A.D.2d 690, 535 N.Y.S.2d 64;  People v. Buffa, 139 A.D.2d 751, 751-752, 527 N.Y.S.2d 501).

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