PEOPLE v. BATISTA (2023)

DECISION & ORDER

Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered March 9, 2020, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated conditions thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of grand larceny in the fourth degree.

ORDERED that the amended judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid.  The standard written appeal waiver form misstated the applicable law and was misleading (see People v. Green, 205 A.D.3d 1051, 1052, 166 N.Y.S.3d 892;  People v. Gaindarpersaud, 188 A.D.3d 718, 719, 131 N.Y.S.3d 652;  People v. Habersham, 186 A.D.3d 854, 854, 127 N.Y.S.3d 775).  The Supreme Court's terse colloquy was insufficient to cure the defects of the written waiver (see People v. Thomas, 34 N.Y.3d 545, 564–566, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Habersham, 186 A.D.3d at 854, 127 N.Y.S.3d 775).  Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.  Nevertheless, the resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review (see People v. Dickerson, 61 A.D.3d 1220, 1221, 876 N.Y.S.2d 662;  People v. Robles, 5 A.D.3d 180, 180–181, 772 N.Y.S.2d 516;  People v. Wilson, 289 A.D.2d 1088, 735 N.Y.S.2d 463;  People v. Santana, 191 A.D.2d 655, 595 N.Y.S.2d 220), and, in any event, without merit.

IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.