defendant signed a written waiver in New York

2018Although the defendant signed a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature ( see People v Guarchaj, 122 AD3d 878, 879 ; People v Pelaez, 100 AD3d 803, 803 ).

2013While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” (People v Bradshaw, 76 AD3d 566 , 569 [2010], affd 18 NY3d 257 [2011] [emphasis added]; see People v Pelaez, 100 AD3d 803, 804 [2012]).

2013Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony (see CPL 710.20 [2]; People v Jacob, 94 AD3d 1142, 1144 [2012]; People v Bradshaw, 76 AD3d at 570).

2013Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony (see CPL 710.20 [2]; People v Jacob, 94 AD3d 1142, 1144 [2012]; People v Bradshaw, 76 AD3d at 570).

2020Although the defendant signed a written waiver form, the transcript of the plea proceeding reveals that instead of ascertaining on the record whether the defendant read the written waiver and was aware of its contents, the court deferred to defense counsel's statements about counsel's off-the-record conversations with the defendant regarding the written waiver ( see People v Brown , 122 AD3d 133, 140-141 ).

2019Although the defendant signed a written waiver of his right to appeal, the record does not demonstrate that he had a full appreciation of the consequences of the waiver ( see People v Seaberg , 74 NY2d 1, 11 ; People v Reyes , 116 AD3d 798 ), as the Supreme Court's brief colloquy failed to sufficiently advise him of the nature of the right to appeal and the consequences of waiving it ( see People v Guarchaj , 122 AD3d 878 ; People v Brown , 122 AD3d 133, 140 ).

2020Moreover, although the defendant signed a written waiver, the court did not ascertain on the record whether the defendant had read the waiver or whether he was even aware of its contents ( see People v Elmer , 19 NY3d 501, 510 ; People v Callahan , 80 NY2d 273, 283 ; People v Baldassarre , 175 AD3d 1315 ; People v Pinchback , 173 AD3d 773 ).

2018Although the defendant signed a written waiver of the right to appeal, the court never elicited from the defendant that he read and understood the document before signing it ( see People v Callahan , 80 NY2d 273, 283 ; People v Brown , 122 AD3d 133, 139 ).

2019The Supreme Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver which he discussed with counsel and which adequately supplemented the oral colloquy ( see People v Elliot , 137 AD3d 715, 716 ; People v Rivera , 126 AD3d 727, 728 ).

2018The County Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver, which he discussed with standby counsel and which adequately supplemented the oral colloquy ( see People v Moore , 140 AD3d at 1091 ; People v Elliot , 137 AD3d 715, 716 ; People v Rivera , 126 AD3d 727, 728 ).

2019The Supreme Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver which he discussed with counsel and which adequately supplemented the oral colloquy ( see People v Elliot , 137 AD3d 715, 716 ; People v Rivera , 126 AD3d 727, 728 ).

2018The County Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver, which he discussed with standby counsel and which adequately supplemented the oral colloquy ( see People v Moore , 140 AD3d at 1091 ; People v Elliot , 137 AD3d 715, 716 ; People v Rivera , 126 AD3d 727, 728 ).

2019Although the defendant signed a written waiver of his right to appeal, the record does not demonstrate that he had a full appreciation of the consequences of the waiver ( see People v Seaberg , 74 NY2d 1, 11 ; People v Reyes , 116 AD3d 798 ), as the Supreme Court's brief colloquy failed to sufficiently advise him of the nature of the right to appeal and the consequences of waiving it ( see People v Guarchaj , 122 AD3d 878 ; People v Brown , 122 AD3d 133, 140 ).

2014Accordingly, under these circumstances, it cannot be said that the defendant “voluntarily, knowingly, and intelligently” waived his right to appeal (see People v Seaberg, 74 NY2d 1, 11 [1989]; People v Callahan, 80 NY2d 273, 276 [1992]).

2019The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge to the hearing court's suppression determination ( see People v Kemp , 94 NY2d 831, 833 ; People v Abraham , 150 AD3d 1021 ; People v Sanchez , 122 AD3d 778, 778-779 ; People v Kidd , 100 AD3d 779, 779 ).

2016The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive and of his challenge to the hearing court’s suppression determination (see People v Magnotta, 137 AD3d 1303 [2016]; People v Walsh, 136 AD3d 629 [2016]; People v Carney, 129 AD3d 1511 [2015]; People v Williams, 122 AD3d 781 [2014]; People v Sanchez, 122 AD3d 778, 778-779 [2014]).

2015Moreover, although the defendant signed a written waiver of the right to appeal, the record contains no information about the circumstances under which it was executed, including whether the defendant read it, was aware of its contents, or understood it (see People v Brown, 122 AD3d 133, 139 [2014]; People v Reyes, 121 AD3d 820, 821 [2014]).

2015Moreover, although the defendant signed a written waiver of the right to appeal, the record contains no information about the circumstances under which it was executed, [*2]including whether the defendant read it, was aware of its contents, or understood it ( see People v Brown, 122 AD3d 133, 139 ; People v Reyes, 121 AD3d 820, 821 ).

2022The defendant's claim of ineffective assistance of counsel constitutes a "mixed claim of ineffective assistance" because it is based, in part, on matter appearing on the record and, in part, on matter outside the record ( People v Maxwell , 89 AD3d 1108, 1109 ; see People v Burke , 194 AD3d 834 ).

2019"Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused'" ( People v Garcia , 92 NY2d 869, 870 , quoting People v Hidalgo , 91 NY2d 733, 736 ; see People v Conceicao , 26 NY3d 375, 383-384 ; People v Duart , 144 AD3d 1173 ).