People v. Spears , 148 A.D.3d 1059 ( 2017 )

People v Spears (2017 NY Slip Op 02068)

People v Spears

2017 NY Slip Op 02068

Decided on March 22, 2017

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 March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
LEONARD B. AUSTIN
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.

2014-06289
(Ind. No. 4423/12)

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

v

Gerald Spears, appellant.

Lynn W. L. Fahey, New York, NY, for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Gregory Musso 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 (Murphy, J.), imposed May 23, 2014, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's waiver of his right to appeal was invalid. By informing the defendant that, in its courtroom, "everybody" who pleads guilty "waives their right to appeal," the Supreme Court improperly conflated the right to appeal with one of the rights automatically forfeited by a plea of guilty (see People v Lopez, 6 NY3d 248, 256-257; People v Mack, 142 AD3d 1185).

However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

ENG, P.J., AUSTIN, ROMAN, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court