| People v Michael |
| 2014 NY Slip Op 05899 |
| Decided on August 20, 2014 |
| 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 20, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
MARK C. DILLON
PLUMMER E. LOTT
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.
2013-03222
(Ind. No. 3011-12)
v
Robert Michael, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Braslow, J.), imposed February 26, 2013, 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 Lopez, 6 NY3d 248, 256). The record does not demonstrate that the defendant "grasped the concept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d 257, 267; see People v Johnson, 113 AD3d 635, 635). Therefore, notwithstanding the defendant's execution of the written waiver form, it cannot be said that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v Pressley, 116 AD3d 794). Accordingly, review of the defendant's excessive sentence claim is not precluded.
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
ENG, P.J., DILLON, LOTT, SGROI and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court