PEOPLE v. ERDAIDE (2023)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Phillip ERDAIDE, appellant.

2022–02164

Decided: May 31, 2023

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, JOSEPH J. MALTESE, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

Patricia Pazner, New York, NY (Victoria L. Benton of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel; Christopher M. Ciccolini on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Toni M. Cimino, J.), imposed February 24, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid because the Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and poor person relief (see People v. Stewart, 200 A.D.3d 723, 154 N.Y.S.3d 843; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622). Under the circumstances of this case, the defendant's execution of a written waiver of the right to appeal form did not cure the deficient oral colloquy. 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).

BARROS, J.P., BRATHWAITE NELSON, MALTESE, FORD and WARHIT, JJ., concur.

Was this helpful?

Easy to understand

Solved my problem

Other

Missing the information I need

Too complicated / too many steps

Out of date

Other

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law