The People, etc., respondent, v. Warren Johnson, appellant.

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

The People, etc., respondent, v. Warren Johnson, appellant.

2009–03496 (Ind.No. 2141/07)

Decided: August 07, 2013

RANDALL T. ENG, P.J. WILLIAM F. MASTRO THOMAS A. DICKERSON PLUMMER E. LOTT ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel;  Julaine Gallo on the memorandum), for respondent.

Submitted—December 28, 2012

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Hanophy, J.), imposed January 12, 2009, 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 review of the severity of his or her sentence (see People v. Lopez, 6 NY3d 248, 255).   Here, however, the Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid.   The record does not demonstrate that the defendant “grasped the concept of the appeal waiver and the nature of the right he was foregoing” (People v. Bradshaw, 18 NY3d 257, 267;  see People v. Grant, 83 AD3d 862, 862–863;  cf.  People v. Ramos, 7 NY3d 737, 738).   Therefore, “notwithstanding the written appeal waiver form it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal” (People v. Bradshaw, 18 NY3d at 267;  see People v. Elmer, 19 NY3d 501, 510;  People v. Vasquez, 101 AD3d 1054).

Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

ENG, P.J., MASTRO, DICKERSON, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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