

People v Pinchback (2019 NY Slip Op 04417)





People v Pinchback


2019 NY Slip Op 04417


Decided on June 5, 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 June 5, 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.


2017-12780
 (Ind. No. 10135/17)

[*1]The People of the State of New York, respondent,
vJamal Pinchback, appellant.


Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Christopher Blira-Koessler of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed October 26, 2017, 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 the right to appeal was invalid, as the record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty (see People v Melendez, 164 AD3d 1473; People v James, 164 AD3d 1363). Further, the transcript of the plea proceeding shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or whether he was even aware of its contents (see People v Bradshaw, 18 NY3d 257, 267; People v Santeramo, 153 AD3d 1286; People v Cambridge, 145 AD3d 795, 795-796). Accordingly, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and, thus, the waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v Dixon, 163 AD3d 988, 989; People v Brown, 122 AD3d 133).
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


