PEOPLE v. LORA (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered August 9, 2022, convicting him of criminal possession of a weapon in the second 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, voluntarily, and intelligently waived his right to appeal.  The Supreme Court's colloquy improperly suggested that appellate review would not remain for certain issues, including the voluntariness of the plea and the jurisdiction of the court (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882).  Moreover, during the appeal waiver colloquy, the court did not explain that if the defendant could not afford the costs of an appeal or of an attorney to represent him on appeal, the State would bear those costs (see People v. Alexander, 225 A.D.3d 890, 891, 206 N.Y.S.3d 188).  Further, given the court's failure to ascertain whether the defendant understood the contents of a written waiver of the right to appeal, and the fact that this was the defendant's first felony conviction, the defendant's execution of a written waiver of the right to appeal did not cure the court's deficient oral colloquy (see People v. Haughton, 229 A.D.3d 467, 468, 212 N.Y.S.3d 446;  People v. Hopkins, 227 A.D.3d 734, 209 N.Y.S.3d 569).  Thus, the appeal waiver does not preclude appellate review of the defendant's claim that the sentence imposed was excessive (see People v. Haughton, 229 A.D.3d at 468, 212 N.Y.S.3d 446).

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

IANNACCI, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.