People v. Rabidou

184 N.Y.S.3d 605 (Mem)

The PEOPLE, etc., respondent,

v.Donald RABIDOU, appellant.

2020–01519

Ind. No. 2347/19

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

Submitted—January 11, 2023

March 29, 2023

Twyla Carter, New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Ronald Eniclerico 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 (Deborah Stevens Modica, J.), imposed January 28, 2020, 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 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. Martinez, 209 A.D.3d 765, 766, 174 N.Y.S.3d 897 ), 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 ). 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...