PEOPLE v. HARRIS (2025)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Stephanie Zaro, J.), imposed November 1, 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. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  The Supreme Court did not discuss the appeal waiver with the defendant until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Donegan, 232 A.D.3d 804, 805, 222 N.Y.S.3d 569;  People v. Haughton, 229 A.D.3d 467, 467–468, 212 N.Y.S.3d 446), and the court's oral colloquy mischaracterized the scope of the waiver of the right to appeal (see People v. Francis, 215 A.D.3d 762, 762, 185 N.Y.S.3d 695;  People v. White, 198 A.D.3d 990, 990–991, 152 N.Y.S.3d 921).  Moreover, the written waiver of the right to appeal did not cure the deficiencies in the oral colloquy (see People v. Donegan, 232 A.D.3d at 805, 222 N.Y.S.3d 569).  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).

DILLON, J.P., GENOVESI, WOOTEN, WAN and GOLIA, JJ., concur.