PEOPLE v. FLOYD III (2023)

DECISION & ORDER

Appeal by the defendant from an amended judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered April 21, 2021, revoking a sentence of probation previously imposed by the same court, upon a finding that he violated conditions thereof, upon his admission and after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree.

ORDERED that the amended judgment is affirmed.

Contrary to the defendant's contention, his admission to intentionally damaging his former girlfriend's cell phone was sufficient to establish a violation of probation despite the fact that his arrest for that incident resulted in an adjournment in contemplation of dismissal (see People v. Tavarez, 66 A.D.3d 552, 886 N.Y.S.2d 594).

Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  The County Court's colloquy on this issue “mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal” (People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622;  see People v. Lorenzo–Perez, 203 A.D.3d 847, 847, 160 N.Y.S.3d 895;  People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778;  People v. Coverdale, 189 A.D.3d 1610, 1610, 136 N.Y.S.3d 335).  The written waiver form, which also improperly indicated that the defendant was waiving “any and all” appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Lorenzo–Perez, 203 A.D.3d at 847, 160 N.Y.S.3d 895;  People v. Momoh, 192 A.D.3d at 916, 140 N.Y.S.3d 778;  People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211).  Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim.

Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.