Peoplev.Kupershmidt

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Second Department, New York.Jul 26, 2017
59 N.Y.S.3d 139 (N.Y. App. Div. 2017)
59 N.Y.S.3d 139152 A.D.3d 797

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2015-12601, Ind. No. 3485/15.

07-26-2017

The PEOPLE, etc., respondent, v. Boris KUPERSHMIDT, appellant.

Lynn W.L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Johanna Carmona on the memorandum), for respondent.


Lynn W.L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Johanna Carmona on the memorandum), for respondent.

RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Murphy, J.), imposed December 4, 2015, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Black, 144 A.D.3d 935, 935–936, 41 N.Y.S.3d 126 ; People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ; People v. Gordon, 127 A.D.3d 1230, 1230, 5 N.Y.S.3d 900 ; People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724 ; People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554 ). Nor does the record demonstrate that the defendant otherwise understood the nature of the right to appeal (cf. People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). Furthermore, although the defendant executed a written appeal waiver form, 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 discussed it with defense counsel, or whether he was even aware of its contents (see People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ; see also People v. Black, 144 A.D.3d at 936, 42 N.Y.S.3d 185 ; People v. Pacheco, 138 A.D.3d at 1036, 28 N.Y.S.3d 627). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; see

generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).


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