

People v Cruz (2019 NY Slip Op 08209)





People v Cruz


2019 NY Slip Op 08209


Decided on November 13, 2019


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 13, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
JOSEPH J. MALTESE
LINDA CHRISTOPHER, JJ.


2018-09011
 (Ind. No. 636/17)

[*1]The People of the State of New York, respondent,
vRobert Cruz, appellant.


Janet E. Sabel, New York, NY (Ellen Dille of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (Johnnette Traill and Roni Piplani of counsel; Manipal Singh on the memorandum), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), imposed February 1, 2018, 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 NY3d 257, 264). The record of the plea proceeding fails to establish that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v Lopez, 6 NY3d 248, 256; People v Dunn, 167 AD3d 651, 652). Although the defendant signed a written waiver of his right to appeal, the Supreme Court failed to obtain confirmation that the defendant had read the document before signing it and that he understood it (see People v Bradley, 167 AD3d 768). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v Lopez, 6 NY3d at 257).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


