Peoplev.Butts

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentMar 13, 2019
2019 N.Y. Slip Op. 1787 (N.Y. App. Div. 2019)

2017-06044

03-13-2019

The People of the State of New York, respondent, v. Dwayne Butts, appellant.

Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Peter N. Pearl of counsel), for respondent.


LEONARD B. AUSTIN SHERI S. ROMAN JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ. (Ind. No. 9963/16)

Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Peter N. Pearl of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Danny K. Chun, J.), imposed May 3, 2017, upon his plea of guilty, on the ground that the sentence imposed was excessive.

ORDERED that the sentence is affirmed.

"A defendant's valid waiver of the right to appeal includes waiver of the right to invoke the Appellate Division's interest-of-justice jurisdiction to reduce the sentence" (People v Lopez, 6 NY3d 248, 255). Here, the defendant's purported waiver of the right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264). The record does not demonstrate that the defendant understood the distinction between the right to appeal he was asked to give up as a condition of the plea agreement and other trial rights he automatically forfeited upon his plea of guilty (see People v Bratton, 165 AD3d 693). Further, although the defendant signed a written waiver of his right to appeal, the Supreme Court did not ascertain on the record whether the defendant read the written waiver or was aware of its contents (see People v Medina, 161 AD3d 778, 779; People v Brown, 122 AD3d 133, 145). Since the defendant's purported waiver of the right to appeal was invalid, this Court is not precluded from reviewing the defendant's excessive sentence claim.

However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

LEVENTHAL, J.P., AUSTIN, ROMAN, MALTESE and CONNOLLY, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court