People v Pittman
2008 NY Slip Op 01574 [48 AD3d 709]
February 19, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 16, 2008


The People of the State of New York, Respondent,
v
Michael Pittman, Appellant.

[*1] Steven Banks, New York, N.Y. (Heidi Bota of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Caroline R. Donhauser of counsel; Gail A. Montemayor on the memorandum), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Holdman, J.), imposed July 13, 2006, upon his conviction of criminal possession of a weapon in the third degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of seven years and a period of post-release supervision of three years.

Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment of 7 years to a determinate term of imprisonment of 3 years and by reducing the period of post-release supervision of 3 years to a period of post-release supervision of 1½ years.

The defendant was incorrectly informed, in a preprinted waiver form, that his right to appeal did not include the right to appellate review of his sentence on the ground that it was excessive (see People v Hurd, 44 AD3d 791, 792 [2007], lv denied 9 NY3d 1006 [2007]). Therefore, the purported waiver of his right to appeal cannot be considered knowing, voluntary, and intelligent (see People v Hale, 30 AD3d 613, 614 [2006]; People v Rose, 236 AD2d 637 [1997]; People v Rolon, 220 AD2d 543 [1995]).

In light of all of the circumstances of this case, the sentence imposed is excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80, 83-87 [1982]). Prudenti, P.J., Spolzino, Florio, Covello and Dickerson, JJ., concur.