PEOPLE v. BLAKE (2022)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Michael B. Aloise, J.), imposed July 15, 2019, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645).  The Supreme Court did not discuss the appeal waiver until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Diallo, 196 A.D.3d 598, 147 N.Y.S.3d 454), and the court failed to ascertain “that the defendant understood the nature of the appellate rights being waived” and the consequences of waiving those rights (People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970;  see People v. Daniel, 188 A.D.3d 908, 132 N.Y.S.3d 303).  Further, although the defendant executed a written waiver of the right to appeal, the written waiver contained erroneous statements with regard to the issues encompassed by the waiver of the right to appeal (see People v. Chy, 184 A.D.3d 664, 666, 125 N.Y.S.3d 130;  People v. Wilkinson, 176 A.D.3d 879, 880, 107 N.Y.S.3d 896) and was insufficient to cure the deficiencies in the oral colloquy (see People v. Mendez, 202 A.D.3d 834, 835, 158 N.Y.S.3d 868).  Accordingly, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

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

DUFFY, J.P., MILLER, DOWLING and WARHIT, JJ., concur.