PEOPLE v. DOWLING (2025)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Joseph E. Gubbay, J., at plea;  Matthew J. D'Emic, J., at sentence), imposed January 25, 2023, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Based on the totality of the circumstances, the defendant's purported waiver of the right to appeal was invalid.  “The trial courts must be sure to obtain, on the record, an affirmative response from the defendant that he or she understands the rights as explained, that the defendant is giving up those rights, and that the defendant is doing so voluntarily after discussing same with counsel” (People v. Deas, 228 A.D.3d 954, 954, 212 N.Y.S.3d 212 [internal quotation marks omitted]).  Here, the Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see id.;  People v. Habersham, 186 A.D.3d 854, 854–855, 127 N.Y.S.3d 775) and did not ensure that he understood the distinction between the right to appeal and the rights automatically forfeited upon entering a plea of guilty (see People v. Soto, 169 A.D.3d 937, 937–938, 92 N.Y.S.3d 668).  Moreover, the court's oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and a waiver of costs, fees, and expenses (see People v. Burris, 231 A.D.3d 1063, 1063–1064, 219 N.Y.S.3d 140;  People v. Erdaide, 216 A.D.3d 1178, 1178, 188 N.Y.S.3d 211).  Under the circumstances, the defendant's execution of a written waiver of the right to appeal did not cure the deficient oral colloquy (see People v. Burris, 231 A.D.3d at 1064, 219 N.Y.S.3d 140;  People v. Deas, 228 A.D.3d at 954, 212 N.Y.S.3d 212).  Accordingly, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

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., CHAMBERS, FORD, TAYLOR and MCCORMACK, JJ., concur.