Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Maria Park of counsel; Gregory Musso on the memorandum), for respondent.
Appeal by the defendant from a sentence of the Supreme Court, Kings County (DiMango, J.), imposed February 16, 2011, on the ground that the sentence is excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of the right to appeal is invalid because the Supreme Court, in explaining the right to appeal, “lump[ed]” it with the rights automatically surrendered by entry of a plea of guilty ( People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Further, the executed waiver form did not cure the error because even though that form explained that the right to appeal was indeed separate from other enumerated rights, the court failed to ensure that the defendant had read it and was aware of its contents ( see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Alston, 101 A.D.3d 1672, 1673, 956 N.Y.S.2d 757).
However, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
ENG, P.J., ANGIOLILLO, BALKIN and HALL, JJ., concur.