PEOPLE v. STOKES (2024)

DECISION & ORDER

Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Richmond County (Lisa Grey, J.), imposed December 12, 2022, upon her 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 her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  Although the defendant executed a written appeal waiver form, it “implied that [she] was completely waiving h[er] right to prosecute an appeal as a poor person, and to have an attorney assigned if indigent” (People v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [alterations and internal quotation marks omitted]).  Relatedly, in its oral colloquy, the Supreme Court “failed to advise the defendant that the waiver did not encompass the loss of attendant rights to counsel and poor person relief” (People v. King, ––– A.D.3d ––––, ––––, 217 N.Y.S.3d 673, 674 [2d Dept.];  see People v. Ortega, 228 A.D.3d 784, 784, 210 N.Y.S.3d 781;  People v. Hopkins, 227 A.D.3d 734, 734, 209 N.Y.S.3d 569).  Since the defendant did not validly waive her right to appeal, this Court is not precluded from considering the merits of her contention that the sentence imposed was excessive.

Nevertheless, 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.