You are here: / / WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A...
,

WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A PARTICULAR SENTENCE AT THE TIME OF THE PLEA, PRESENTENCE REPORT INADEQUATE, SENTENCE REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s sentence and remitting for resentencing, determined defendant’s waiver of appeal was invalid and the sentencing court did not have sufficient information about the defendant at the time of sentencing. The presentence investigation report was incomplete, in part because there was no interpreter available. The Second Department further determined that the sentencing court could not be bound by a purported commitment to the prosecutor at the time of the plea to impose a particular sentence:

Given the defendant’s inexperience with the criminal justice system, the Supreme Court’s terse colloquy at the plea allocution was insufficient to advise the defendant of the nature of the right to appeal … . There is no indication in the record that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty … . Although the defendant signed a written waiver of the right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Sinhala interpreter, before it was presented to him for signature … . …

“…. [A] sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court” … . The determination of an appropriate sentence requires the court to exercise its discretion “after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . …

Most troubling … is that in preparing the presentence investigation report for the Supreme Court in advance of sentencing, the Department of Probation did not interview the defendant because it was “unable to secure an interpreter” on two scheduled dates for an interview. Thus, the presentence investigation report does not contain any information regarding the defendant’s mental status, educational background, employment history, or military background. The report indicates that the defendant’s physiological health was “unknown,” and that his psychological condition was “unavailable.” Even though the Department of Probation did not interview the defendant, the report indicates that the defendant “reported no use of controlled substances and/or alcohol.”

Under the circumstances here, the information contained in the record of the plea proceeding, the sentencing proceeding, and the presentence investigation report was insufficient for a sentencing court to exercise discretion in determining an appropriate sentence. People v Pelige, 2019 NY Slip Op 04204, Second Dept 5-29-19

 

You might also like
​ THE DISCHARGED LAW FIRM HANDLED THE PERSONAL INJURY CASE FOR TWO YEARS; ALTHOUGH THE FIRM DID NOT SUBMIT ANY TIME RECORDS, SUPREME COURT ABUSED ITS DISCRETION IN REFUSING TO AWARD THE DISCHARGED FIRM A PORTION OF THE CONTINGENCY FEE AFTER THE CASE SETTLED (SECOND DEPT).
THE COUNTY LEGISLATURE DID NOT HAVE THE AUTHORITY TO ADOPT A RESOLUTION REQUIRING THE DISCLOSURE OF AN ASSISTANT DISTRICT ATTORNEY’S FINANCIAL INFORMATION AFTER THE COUNTY ETHICS COMMITTEE DENIED THE DISCLOSURE-REQUEST MADE BY A NEWSPAPER; THE LEGISLATURE USURPED THE POWER OF A REVIEWING COURT (SECOND DEPT).
PLAINTIFF WAS LEANING INSIDE THE OPEN DOOR OF A VAN WHEN THE VAN SUDDENLY MOVED FORWARD; THE RELATED VIOLATION OF THE VEHICLE AND TRAFFIC LAW CONSTITUTED NEGLIGENCE PER SE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH DEFENDANTS MISSED THE DEADLINE AND THEREBY WAIVED THE RIGHT TO MEDICAL EXAMINATIONS OF PLAINTIFF, THE MOTION TO STRIKE THE NOTE OF ISSUE AND COMPEL AN EXAM SHOUD HAVE BEEN GRANTED (SECOND DEPT).
THE FACT THAT THE HOME WAS ILLUMINATED WHEN THE PROCESS SERVER ATTEMPTED SERVICE DID NOT DEMONSTRATE DEFENDANT WAS EVADING SERVICE; THE PROCESS SERVER DID NOT ATTEMPT SERVICE AT DEFENDANT’S PLACE OF EMPLOYMENT; THE “NAIL AND MAIL” SERVICE WAS INVALID (SECOND DEPT).
DEFENDANT’S UNSAFE LANE-CHANGE, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, WARRANTED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).
FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.
UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT... DESIGNATING PETITION SHOULD HAVE BEEN VALIDATED, SUPREME COURT SHOULD NOT HAVE...