People v Marcelle, 2023 NY Slip Op 06533 [222 AD3d 883]

December 20, 2023

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Kevin Marcelle, Appellant.

Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Ann Marie Turton on the memorandum), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Jerry M. Iannece, J.), imposed August 29, 2022, 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 [2006]). The Supreme Court did not address the appeal waiver as part of the plea bargain being offered to the defendant before the agreement was reached, and it was not until after the defendant had already admitted his guilt that the court discussed the waiver with the defendant ( see People v Adyl K. , 187 AD3d 1208 , 1208-1209 [2020]; People v Sutton , 184 AD3d 236 , 245 [2020]; People v Artis , 177 AD3d 758 , 759 [2019]). Thus, the purported waiver does not preclude appellate review of the defendant’s excessive sentence claim ( see People v Artis , 177 AD3d at 759).

However, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Duffy, J.P., Maltese, Warhit and Ventura, JJ., concur..