

People v Mitchell (2017 NY Slip Op 06379)





People v Mitchell


2017 NY Slip Op 06379


Decided on August 30, 2017


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 August 30, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RANDALL T. ENG, P.J.
MARK C. DILLON
SANDRA L. SGROI
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.


2015-03656
 (Ind. No. 5714/13)

[*1]The People of the State of New York, respondent,
vMichael Mitchell, appellant.


Lynn W. L. Fahey, New York, NY (Barry Stendig of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Camille O'Hara Gillespie of counsel; Noquel A. Matos on the memorandum), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Williams, J.), imposed March 30, 2015, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
Contrary to the People's contention, under the circumstances of this case, the defendant's waiver of the right to appeal does not preclude appellate review of his claim that the sentence imposed was excessive. The plea colloquy fails to establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal the severity of his sentence (see People v Maracle, 19 NY3d 925, 927-928; see also People v Sanders, 25 NY3d 337, 340; People v Bradshaw, 18 NY3d 257, 264; People v Lopez, 6 NY3d 248, 256). However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
ENG, P.J., DILLON, SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


