PEOPLE v. TANG (2023)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Ira H. Margulis, J.), imposed May 13, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, since the Supreme Court did not discuss the appeal waiver until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Blake, 210 AD3d 901;  People v. Diallo, 196 AD3d 598).  Moreover, the court's colloquy improperly suggested that waiving the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish (see People v. Posy, 165 AD3d 1176).  Thus, the defendant's purported waiver of his right to appeal does not preclude appellate review of his excessive sentence claim.

However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

BRATHWAITE NELSON, J.P., MILLER, GENOVESI, TAYLOR and LOVE, JJ., concur.