People v. McDermott , 154 A.D.3d 881 ( 2017 )

People v McDermott (2017 NY Slip Op 07277)

People v McDermott

2017 NY Slip Op 07277

Decided on October 18, 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 October 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
COLLEEN D. DUFFY
BETSY BARROS, JJ.

2014-10380
(Ind. No. 1271/13)

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

v

Merrick McDermott, appellant.

Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner of counsel; Robert Ho 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 (J. Goldberg, J.), imposed September 23, 2014, upon his plea of guilty, on the ground that the sentence is excessive.

ORDERED that the sentence is affirmed.

Given the defendant's limited education, reported illiteracy, and lack of any prior criminal history, the Supreme Court's terse plea colloquy was not sufficient to demonstrate that the defendant's purported waiver of his right to appeal was voluntary, knowing, and intelligent (see People v Sanders, 25 NY3d 337). Moreover, the plea colloquy failed to address whether the defendant waived the right to appeal the harshness of his sentence (see People v Maracle, 19 NY3d 925, 927-928). Therefore, the defendant's purported waiver of his right to appeal was invalid and does not preclude review of his excessive sentence claim. However, contrary to the defendant's contentions, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

ENG, P.J., LEVENTHAL, AUSTIN, DUFFY and BARROS, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court