People v Facey, 2019 NY Slip Op 03361 [172 AD3d 741]

May 1, 2019

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Lydon Facey, Appellant.

Paul Skip Laisure, New York, NY (Mark W. Vorkink of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew D’Emic, J.), imposed January 18, 2017, 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. The Supreme Court failed to provide the defendant with an adequate explanation of the nature of the right to appeal and the consequences of waiving that right ( see People v Ravone A. , 167 AD3d 642 , 643 [2018]). Although the defendant executed a written waiver of the right to appeal, the 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 [2016]; People v Brown , 122 AD3d 133 , 145 [2014]). Thus, the purported waiver does not preclude review of the defendant’s excessive sentence claim.

However, contrary to the defendant’s contention, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Dillon, J.P., Austin, Roman, Maltese and Christopher, JJ., concur..