PEOPLE v. APPIAH (2024)

MEMORANDUM

MEMORANDUM:

The order of the Appellate Division should be reversed and the case remitted to that Court for further proceedings in accordance with this memorandum.

Defendant's waiver of the right to appeal was invalid and unenforceable pursuant to our analysis in People v. Thomas, 34 N.Y.3d 545, 144 N.E.3d 970 (2019) and People v. Bisono, 36 N.Y.3d 1013, 164 N.E.3d 239 (2020).  In voting to affirm the judgment, one Justice of the three-Justice Appellate Division majority panel did not reach the merits of defendant's interest-of-justice challenge to the excessiveness of his sentence based on that Justice's conclusion that the appeal waiver was valid (see generally People v. Callahan, 80 N.Y.2d 273, 284–285, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992]).  We therefore reverse and remit to the Appellate Division for consideration of the merits of defendant's excessive sentence challenge (see People v Billingslea [decided sub nom.  People v Lopez], 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).

On review of submissions pursuant to section 500.11 of the Rules, order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.

Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.