People v. Green

205 A.D.3d 1051

166 N.Y.S.3d 892 (Mem)

The PEOPLE, etc., respondent,

v.Darnell GREEN, appellant.

2019–14103

Ind. No. 1082/15

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

Argued—May 2, 2022

May 25, 2022

Patricia Pazner, New York, NY (Jonathan Schoepp–Wong and David Fitzmaurice of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Kenneth C. Holder, J.), imposed November 21, 2019, upon his conviction for manslaughter in the first degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. Green, 171 A.D.3d 1213, 96 N.Y.S.3d 907 ).

ORDERED that the resentence is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the resentence as imposed mandatory surcharges and fees; as so modified, the resentence is affirmed.

Contrary to the People's contention, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The defendant's written waiver of the right to appeal misstated the applicable law and was misleading, and further misstated that the defendant was giving up the right to poor person relief and postconviction remedies in both state and federal courts separate from his direct appeal (see People v. Hernandez–Garcia, 203 A.D.3d 751, 160 N.Y.S.3d 654 ; People v. Morrison, 199 A.D.3d 707, 707–708, 153 N.Y.S.3d 902 ; People v. Gaindarpersaud, 188 A.D.3d 718, 719, 131 N.Y.S.3d 652 ; People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 ). The Supreme Court's oral colloquy was insufficient to cure the defects of the written waiver (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Hernandez–Garcia, 203 A.D.3d 751, 160 N.Y.S.3d 654 ; People v. Morrison, 199 A.D.3d at 707–708, 153 N.Y.S.3d 902 ; People v. Emery, 196 A.D.3d 599, 147 N.Y.S.3d 430 ). Thus, the purported waiver does not preclude appellate review of the defendant's claim that the court improvidently exercised its discretion in denying him youthful offender treatment (see People v. Cooper, 179 A.D.3d 832, 833, 113 N.Y.S.3d 882 ).

"The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case" ( People v. Hesterbey, 121 A.D.3d 1127, 1128, 994 N.Y.S.2d 421 [internal quotation marks omitted]; see People v. Alleyne, 203 A.D.3d 732, 160 N.Y.S.3d 634 ; People v. Mullings, 83 A.D.3d 871, 872, 921 N.Y.S.2d 152 ). Here, we find no basis to disturb the Supreme Court's determination denying youthful offender status to the defendant (see CPL 720.20[1] ; People v. Alleyne, 203 A.D.3d 732, 160 N.Y.S.3d 634 ; People v. Beyjones, 186 A.D.3d 848, 849, 127 N.Y.S.3d 766 ; People v. Hesterbey, 121 A.D.3d at 1128, 994 N.Y.S.2d 421 ).

Inasmuch as the defendant's purported waiver of the right to appeal was invalid, it does not preclude appellate review of his excessive sentence claim (see People v. Morrison, 199 A.D.3d at 708, 153 N.Y.S.3d 902 ; People v. Cooper, 179 A.D.3d at 833, 113 N.Y.S.3d 882 ). However, the resentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

As consented to by the People, we modify the resentence by vacating the surcharges and fees imposed (see CPL 420.35[2–a][c] ; People v. Reeves, 203 A.D.3d 1181, 163 N.Y.S.3d 439 ; People v. Dickerson, 201 A.D.3d 731, 156 N.Y.S.3d 881 ; People v. Santillan, 200 A.D.3d 1074, 1075, 155 N.Y.S.3d 821 ).

CONNOLLY, J.P., CHRISTOPHER, FORD and DOWLING, JJ., concur.