People v. Miranda

180 N.Y.S.3d 912 (Mem)

The PEOPLE, etc., respondent,

v.Chauncey MIRANDA, appellant.

2016–13221

Ind. No. 2551/14

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

Submitted—January 11, 2023

February 1, 2023

Patricia Pazner, New York, NY (Ryan Miller of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Jonathan E. Maseng on the memorandum), for respondent.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Kenneth C. Holder, J.), imposed November 28, 2016, 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, 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 (see People v. Nicholson, 211 A.D.3d 852, 179 N.Y.S.3d 357, 2022 N.Y. Slip Op. 07079, *1 [2d Dept.] ; People v. Green, 205 A.D.3d 1051, 1052, 166 N.Y.S.3d 892 ). 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. Green, 205 A.D.3d at 1052, 166 N.Y.S.3d 892 ). Thus, 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 ).

DUFFY, J.P., MILLER, DOWLING and WARHIT, JJ., concur.