PEOPLE v. YENTES (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Bruna L. DiBiase, J., at plea;  Suzanne J. Melendez, J., at sentence), rendered November 4, 2019, convicting him of robbery in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645).  “The defendant's written waiver of the right to appeal misstated the applicable law and was misleading and further misstated that the defendant was giving up the right to poor person relief and postconviction remedies in both state and federal courts separate from direct appeal” (People v. Morrison, 199 A.D.3d 707, 708, 153 N.Y.S.3d 902;  see People v. Vargas, 187 A.D.3d 1222, 131 N.Y.S.3d 218;  People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775).  The Supreme Court's oral colloquy was insufficient to cure the defects of the written waiver (see People v. Morrison, 199 A.D.3d at 708, 153 N.Y.S.3d 902).  Accordingly, the defendant's purported appeal waiver does not limit the scope of this Court's appellate review (see generally People v. Savransky, 206 A.D.3d 764, 765, 167 N.Y.S.3d 835).

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

The defendant's contention that, in light of the immigration consequences of his sentence, his sentence constitutes cruel and unusual punishment under the State and Federal Constitutions is unpreserved for appellate review (see CPL 470.05[2];  People v. Lopez, 217 A.D.3d 968, 190 N.Y.S.3d 163).  In any event, this contention is without merit (see People v. Seenarine, 206 A.D.3d 765, 766, 167 N.Y.S.3d 845;  People v. Brissett, 196 A.D.3d 642, 643, 148 N.Y.S.3d 383).

CONNOLLY, J.P., IANNACCI, WARHIT and LOVE, JJ., concur.