People v Portillo

People v Portillo 2019 NY Slip Op 08873 Decided on December 11, 2019 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 December 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
FRANCESCA E. CONNOLLY, JJ.
2017-01767
(Ind. No. 1090/14)

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

v

Jaime Portillo, appellant.

Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Roni Piplani of counsel; Lorrie A. Zinno 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 (Deborah Stevens Modica, J.), imposed November 15, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of the right to appeal was invalid and, thus, does not preclude appellate review of his excessive sentence claim (see People v Lopez, 6 NY3d 248, 257). The Supreme Court's colloquy did not ensure that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see id. at 257; People v Batista, 167 AD3d 69, 76; People v Brown, 122 AD3d 133, 137-138). However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

BALKIN, J.P., CHAMBERS, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court