PEOPLE v. HURD (2007)

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Reichbach, J.), imposed January 10, 2006, upon his conviction of attempted murder in the second degree, upon his plea of guilty.

ORDERED that the sentence is affirmed.

“The form signed by the defendant, which purported to constitute a waiver of his right to appeal, was insufficient to establish that he knowingly, intelligently, and voluntarily waived his right to appeal from his sentence on the ground of excessiveness” (People v. Hale, 30 A.D.3d 613, 614, 820 N.Y.S.2d 515;  see People v. Caleb C., 32 A.D.3d 543, 819 N.Y.S.2d 842;  People v. Borgwin, 23 A.D.3d 491, 803 N.Y.S.2d 912;  People v. Brown, 13 A.D.3d 548, 549, 786 N.Y.S.2d 583;  People v. Rolon, 220 A.D.2d 543, 632 N.Y.S.2d 208).   In this regard, the subject preprinted form, designated as Form CRO38 (06/92), contained the following recital:  “I have been advised of my right to take an appeal ․ and to submit a brief and/or argue before an appellate court on any issues relating to my conviction and sentence other than that the sentence on a negotiated plea was harsh or excessive (emphasis added).”   This language misstates the applicable law, and is misleading (see People v. Pollenz, 67 N.Y.2d 264, 268-270, 502 N.Y.S.2d 417, 493 N.E.2d 541).   The defendant's purported waiver of his right, on appeal, to challenge the sentence as excessive thus was invalid.   To the extent that the aforementioned form is still being utilized, its use should be discontinued.

Accordingly, we have considered the defendant's contention that the sentence imposed was excessive, but find it to be without merit (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).