People v. Esposito

Oct 7, 2020
2018-01842
Versions:187 A.D.3d 781
130 N.Y.S.3d 331
2020 NY Slip Op 05524

Janet E. Sabel, New York, NY (Whitney Elliott of counsel), for appellant.

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

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Charles Troia, J.), imposed June 7, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Contrary to the People‘s contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248, 256). The record reflects that the Supreme Court made its own offer of sentence to the defendant and required that the defendant waive his right to appeal, but the court did not set forth any reason for demanding an appeal waiver, and none is apparent on the record (see People v Sutton, 184 AD3d 236, 244-245). Accordingly, the purported appeal waiver does not preclude appellate review of the defendant‘s excessive sentence claim (see id. at 244-245).

However, under the circumstances, we decline to exercise our interest of justice jurisdiction to modify the sentence imposed (see CPL 470.15[6][b]).

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court