Opinion
2013-05039
11-19-2014
The PEOPLE, etc., respondent, v. Juan GUARCHAJ, appellant.
Seymour W. James, Jr., New York, N.Y. (Jeffrey Dellheim of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Ferdinand Suba, Jr., on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Jeffrey Dellheim of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Ferdinand Suba, Jr., on the brief), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gubbay, J.), rendered April 19, 2013, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The Supreme Court's statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ; People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ; People v. Bradshaw, 76 A.D.3d 566, 569–570, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty (see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ; People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627 ; People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891 ). Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature (see People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ). In any event, the court's terse colloquy at the plea allocution, which included the language suggesting that the waiver of the right to appeal was mandatory, failed to sufficiently advise the defendant of the nature of the right to appeal (see People v. Pressley, 116 A.D.3d 794, 795–796, 983 N.Y.S.2d 322 ; People v. Salgado, 111 A.D.3d 859, 975 N.Y.S.2d 172 ; People v. Nugent, 109 A.D.3d 625, 970 N.Y.S.2d 634 ). Accordingly, under these circumstances, including the defendant's inexperience with the criminal justice system (see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ), the defendant's appeal waiver was invalid (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Pressley, 116 A.D.3d at 796, 983 N.Y.S.2d 322 ; People v. Ayala, 112 A.D.3d at 646, 975 N.Y.S.2d 889 ; People v. Pelaez, 100 A.D.3d at 803–804, 954 N.Y.S.2d 554 ), and does not preclude review of his excessive sentence claim.
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).The defendant's remaining contention is without merit.