

People v Smith (2019 NY Slip Op 02565)





People v Smith


2019 NY Slip Op 02565


Decided on April 3, 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 April 3, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.


2016-04775
 (Ind. No. 1256/14)

[*1]The People of the State of New York, respondent,
vGeraldine Smith, appellant.


Janet E. Sabel, New York, NY (Justine M. Luongo and Elizabeth L. Isaacs), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, and Dmitriy Povazhuk of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (Matthew D'Emic, J.), imposed March 23, 2016, upon her plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The record of the plea proceeding demonstrates that the defendant's purported waiver of the right to appeal was invalid, as the Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v Brown, 122 AD3d 133, 142). Moreover, although the defendant signed a written waiver of her right to appeal, the Supreme Court did not ascertain on the record that the defendant was aware of the waiver's contents and fully understood its nature and consequences (see People v Iovino, 142 AD3d 561, 561-562; People v Brown, 122 AD3d at 145). Thus, the waiver does not preclude review of the defendant's excessive sentence claim.
However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


