People v. Hernandez-Garcia

203 A.D.3d 751

160 N.Y.S.3d 654 (Mem)

The PEOPLE, etc., respondent,

v.Francisco HERNANDEZ–GARCIA, appellant.

2018-06184

Ind. No. 2367/16

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

Submitted—February 2, 2022

March 2, 2022

Patricia Pazner, New York, NY (Anna Kou of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Roni C. Piplani of counsel; Lorrie A. Zinno on the memorandum), for respondent.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gene Lopez, J.), imposed March 27, 2018, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

Contrary to the People's contention, the record does not establish that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, citing People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ). The defendant's written waiver of the right to appeal misstated the applicable law and was misleading (see People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ; People v. Wilkinson, 176 A.D.3d 879, 107 N.Y.S.3d 896 ), 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 direct appeal (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Morrison, 199 A.D.3d 707, 153 N.Y.S.3d 902 ; People v. Gaindarpersaud, 188 A.D.3d 718, 131 N.Y.S.3d 652 ; People v. Suarez–Montoya, 183 A.D.3d 765, 121 N.Y.S.3d 914 ).

Further, the written waiver form additionally failed to adequately advise the defendant of the nature of his right to appeal and suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ; People v. Wilson, 183 A.D.3d 922, 122 N.Y.S.3d 545 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ; People v. Weeks, 182 A.D.3d 539, 122 N.Y.S.3d 347 ; People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882 ; People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). 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. 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 excessive sentence claim (see People v. Morrison, 199 A.D.3d 707, 708, 153 N.Y.S.3d 902 ).

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

CONNOLLY, J.P., RIVERA, MILLER and FORD, JJ., concur.