PEOPLE v. LAWRENCE (2024)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Toni M. Cimino, J.), imposed November 28, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid because the Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and poor person relief (see People v. Erdaide, 216 A.D.3d 1178, 188 N.Y.S.3d 211;  People v. Francis, 215 A.D.3d 762, 762, 185 N.Y.S.3d 695).  Moreover, the court did not discuss the appeal waiver with the defendant until after he had already admitted his guilt as part of the plea agreement (see People v. Heft, 220 A.D.3d 806, 196 N.Y.S.3d 177;  People v. Blake, 210 A.D.3d 901, 901, 178 N.Y.S.3d 201).  Under the circumstances of this case, the defendant's execution of a written waiver of the right to appeal did not cure the deficient oral colloquy (see People v. Matthew M., 224 A.D.3d 927, 929, 206 N.Y.S.3d 671;  People v. Erdaide, 216 A.D.3d 1178, 188 N.Y.S.3d 211).  Accordingly, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

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

BRATHWAITE NELSON, J.P., CHRISTOPHER, FORD and LANDICINO, JJ., concur.