People v Johnson

People v Johnson 2013 NY Slip Op 05591 Decided on August 7, 2013 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 7, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
THOMAS A. DICKERSON
PLUMMER E. LOTT
ROBERT J. MILLER, JJ.
2009-03496
(Ind. No. 2141/07)

[*1]The People of the State of New York, respondent,

v

Warren Johnson, appellant.




Lynn W. L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John
M. Castellano and Daniel Bresnahan
of counsel; Julaine Gallo on the
memorandum), for respondent.


DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Hanophy, J.), imposed January 12, 2009, 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 review of the severity of his or her sentence (see People v Lopez, 6 NY3d 248, 255). Here, however, the 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 "grasped the concept of the appeal waiver and the nature of the right he was foregoing" (People v Bradshaw, 18 NY3d 257, 267; see People v Grant, 83 AD3d 862, 862-863; cf. People v Ramos, 7 NY3d 737, 738). Therefore, "notwithstanding the written appeal waiver form it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal" (People v Bradshaw, 18 NY3d at 267; see People v Elmer, 19 NY3d 501, 510; People v Vasquez, 101 AD3d 1054).

Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
ENG, P.J., MASTRO, DICKERSON, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court