PEOPLE v. HOPKINS (2024)

DECISION & ORDER

Appeals by the defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (John F. Zoll, J.), both imposed October 7, 2022, upon his pleas of guilty, on the ground that the sentences were excessive.

ORDERED that the sentences are affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  The Supreme Court did not address the appeal waiver as part of the plea agreement being offered to the defendant before the agreement was reached, and it was not until after the defendant had already admitted his guilt that the court discussed the waiver with the defendant (see People v. Smith, 224 A.D.3d 785, 203 N.Y.S.3d 401;  People v. Diallo, 196 A.D.3d 598, 147 N.Y.S.3d 454).  Moreover, the court failed to advise the defendant that he retained the right to file a notice of appeal and that the waiver did not encompass the loss of attendant rights to counsel and poor person relief (cf.  People v. Marchetti, 185 A.D.3d 839, 840, 125 N.Y.S.3d 577).  Although the defendant executed a written appeal waiver form, the court failed to confirm that the defendant understood the content of the written waiver (see People v. Richards, 224 A.D.3d 782, 205 N.Y.S.3d 200).  Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

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

BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur.