People v. Vaquero

People v Vaquero (2019 NY Slip Op 00474) People v Vaquero 2019 NY Slip Op 00474 Decided on January 23, 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 January 23, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2017-03745 (Ind. No. 5614/15) [*1]The People of the State of New York, respondent, v Salvador Vaquero, appellant. Paul Skip Laisure, New York, NY (Isa Chakarian of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel; Marielle Burnett on the memorandum), for respondent. DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew D'Emic, J.), imposed April 21, 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 his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 264; People v Little, 127 AD3d 1235, 1235-1236; People v Brown, 122 AD3d 133, 137). The record does not demonstrate 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 People v Kupershmidt, 152 AD3d 797, 798; People v Burnett-Hicks, 133 AD3d 773). Moreover, although the People contend that the defendant executed a written waiver of appeal that was in Spanish, which the defendant does not dispute, the Supreme Court failed to ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether the defendant was even aware of its contents (see People v Iovino, 142 AD3d 561, 561-562; People v Brown, 122 AD3d at 145). Thus, the purported waiver does not preclude review of the defendant's excessive sentence claim. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court