PEOPLE v. TOLENTINO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25 [3]). Defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. We agree with defendant that his waiver of the right to appeal is invalid. Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” (People v. Nesmith, 235 A.D.3d 1239, 1239, 226 N.Y.S.3d 768 [4th Dept. 2025], lv denied 43 N.Y.3d 964, 232 N.Y.S.3d 429, 258 N.E.3d 1202 [2025], quoting People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; see People v. Ocasio, 222 A.D.3d 1364, 1364-1365, 201 N.Y.S.3d 819 [4th Dept. 2023]; People v. Fernandez, 218 A.D.3d 1257, 1257-1258, 194 N.Y.S.3d 632 [4th Dept. 2023], lv denied 40 N.Y.3d 1012, 199 N.Y.S.3d 12, 222 N.E.3d 528 [2023]). Although County Court's oral colloquy remedied the written waiver's mischaracterization of the waiver as an absolute bar to the taking of an appeal, the court's verbal statements did nothing to counter the other inaccuracies set forth in the written appeal waiver, including the purported waiver of all state and federal postconviction challenges (see People v. Mason, 236 A.D.3d 1354, 1355, 228 N.Y.S.3d 818 [4th Dept. 2025], lv denied 43 N.Y.3d 1010, 234 N.Y.S.3d 790, 261 N.E.3d 925 [2025]; see also Nesmith, 235 A.D.3d at 1240, 226 N.Y.S.3d 768; People v. Hughes, 199 A.D.3d 1332, 1333, 157 N.Y.S.3d 203 [4th Dept. 2021]). Contrary to defendant's contention, however, his sentence is not unduly harsh or severe.