People v. Ritorto , 144 A.D.3d 949 ( 2016 )

People v Ritorto (2016 NY Slip Op 07681)

People v Ritorto

2016 NY Slip Op 07681

Decided on November 16, 2016

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 November 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
MARK C. DILLON
SANDRA L. SGROI
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.

2015-02959
(Ind. No. 7335/10)

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

v

Roy Ritorto, appellant.

Lynn W. L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Adolfsen of counsel; Noquel A. Matos on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Kings County (Del Giudice, J.), imposed March 31, 2015, upon his plea of guilty, after remittitur from this Court (see People v Ritorto, 125 AD3d 896), on the ground that the resentence was excessive.

ORDERED that the resentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid, as the record fails to establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Maracle, 19 NY3d 925, 927-928; People v Hunter, 139 AD3d 754; People v Barksdale, 131 AD3d 704; People v Bostic, 125 AD3d 992). Thus, the waiver does not preclude review of the defendant's excessive sentence claim. However, the resentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

ENG, P.J., DILLON, SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court