PEOPLE v. ALEXANDER (2024)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), imposed September 29, 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 defendant's purported waiver of his right to appeal was invalid (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970).  Among other things, during the appeal waiver colloquy, the Supreme Court did not explain what an appeal is or that if the defendant could not afford the costs of an appeal or of an attorney to represent him on appeal, the State would bear those costs.  Further, the court stated to the defendant that his waiver of the right to appeal meant that “[no] judge or group of judges will review anything I say or anything any other judge has done in this case.”  This statement mischaracterized the nature of the right that the defendant was being asked to give up and incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal (see id. at 562–565, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575;  People v. Tellado, 181 A.D.3d 830, 831, 118 N.Y.S.3d 417).  In light of the defendant's age, ninth-grade education, and lack of experience with the criminal justice system, the written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal (see People v. D.A., 184 A.D.3d 581, 583, 124 N.Y.S.3d 374).  Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

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

DILLON, J.P., CHAMBERS, MILLER and WAN, JJ., concur.