People v. Martinez

174 N.Y.S.3d 897 (Mem)

The PEOPLE, etc., respondent,

v.Keanu MARTINEZ, appellant.

2021–07348

Ind. No. 324/18

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

Submitted—September 21, 2022

October 12, 2022

Patricia Pazner, New York, NY (Lynn W.L. Fahey of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jane L. Gordon and Deborah E. Wassel of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gia Lynne Morris, J.), imposed September 10, 2021, 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 defendant's purported waiver of his right to appeal was invalid. The defendant's written waiver mischaracterized the nature of the waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Shelton, 202 A.D.3d 1001, 1003, 159 N.Y.S.3d 705 ), and as encompassing an absolute bar to the pursuit of postconviction collateral relief, including relief pursuant to CPL 440.10 and 440.20 (see People v. Reynolds, 186 A.D.3d 1535, 1535, 129 N.Y.S.3d 495 ). These incorrect statements were not corrected by the Supreme Court during its oral appeal waiver colloquy (see People v. Santillan, 200 A.D.3d 1074, 1075, 155 N.Y.S.3d 821 ). Moreover, during the oral appeal waiver colloquy, the court failed to explain the nature of the right to appeal ( People v. Jackson, 166 A.D.3d 649, 650, 87 N.Y.S.3d 206 ). Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim (see People v. Lorenzo–Perez, 203 A.D.3d 847, 847, 160 N.Y.S.3d 895 ).

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

CONNOLLY, J.P., IANNACCI, WOOTEN and WAN, JJ., concur.