People v Pelinkovic

People v Pelinkovic 2019 NY Slip Op 05692 Decided on July 17, 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 July 17, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.
2017-02772

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

v

Samir Pelinkovic, appellant. (S.C.I. No. 90165/16)

Paul Skip Laisure, New York, NY (Samuel Barr of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Alan J. Meyer, J.), imposed February 6, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d 257). The Supreme Court's terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of the right to appeal and the consequences of waiving it (see People v Farrell, 169 AD3d 919; People v Donohue, 118 AD3d 908), and failed to adequately distinguish between this right and the trial rights automatically forfeited as part of a plea of guilty (see People v Moyett, 7 NY3d 892, 892-893; People v Guarchaj, 122 AD3d 878, 879; People v Pelaez, 100 AD3d 803, 803). Accordingly, the defendant's invalid waiver does not preclude review of his contention that the sentence imposed was excessive.

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

MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court