People v Murray

People v Murray 2009 NY Slip Op 09255 [68 AD3d 896] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
James Murray, Appellant.

—[*1] Craig S. Leeds, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel; Isaac Silverstein on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered December 7, 2004, convicting him of conspiracy in the second degree and criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of his right to appeal cannot be considered knowing, voluntary, and intelligent, as the defendant was incorrectly informed that his right to appeal did not include the right to appellate review of his sentence on the ground that it was excessive (see People v Cruz, 54 AD3d 962, 963 [2008]; People v Hurd, 44 AD3d 791, 792 [2007]; People v Caleb C., 32 AD3d 543 [2006]). Accordingly, we have considered the defendant's contention that the sentence imposed was excessive, but find it to be without merit (see People v Schnoor, 63 AD3d 760 [2009], lv denied 12 NY3d 929 [2009]; People v De Alvarez, 59 AD3d 732 [2009]; People v Kazepis, 101 AD2d 816 [1984]). Rivera, J.P., Covello, Angiolillo, Leventhal and Roman, JJ., concur.