PEOPLE v. KING (2024)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Mary Bejarano, J., at plea;  Frances Y. Wang, J., at sentence), imposed October 3, 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 (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  The Supreme Court's colloquy mischaracterized the nature of the appeal waiver by stating that the defendant's conviction and sentence would be final, thereby suggesting that the waiver may be an absolute bar to the taking of an appeal (see People v. Edwards, 223 A.D.3d 840, 203 N.Y.S.3d 710;  People v. Aquino, 184 A.D.3d 656, 657, 123 N.Y.S.3d 513).  Moreover, the court failed to advise the defendant that the waiver did not encompass the loss of attendant rights to counsel and poor person relief (see People v. Hopkins, 227 A.D.3d 734, 209 N.Y.S.3d 569).  Although the defendant executed a written appeal waiver form, the defendant's understanding of the appeal waiver is not evident on the face of the record due to the deficiency of the court's oral colloquy (see People v. Quezada, 122 A.D.3d 948, 997 N.Y.S.2d 475).  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., MALTESE, WARHIT and VENTURA, JJ., concur.