Opinion
2019–05381 S.C.I. No. 430/19
11-12-2020
The PEOPLE, etc., respondent, v. Rahmell DANIEL, appellant.
Laurette D. Mulry, Riverhead, N.Y. (Amanda E. Schaefer of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Elena Tomaro of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Amanda E. Schaefer of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Elena Tomaro of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Richard Ambro, J.), imposed April 12, 2019, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal is invalid, as the County Court failed to ascertain "that the defendant understood the nature of the appellate rights being waived" and the consequences of waiving those rights ( People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Furthermore, the court failed to indicate that certain rights are nonwaivable and incorrectly suggested that the waiver was an absolute bar to the taking of an appeal (see id. at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Suarez–Montoya, 183 A.D.3d 765, 121 N.Y.S.3d 914 ). There also is no indication in the record that the written waiver form was read to the defendant, who is legally blind (see People v. Cortez, 160 A.D.3d 893, 71 N.Y.S.3d 887 ; People v. Brown, 122 A.D.3d 133, 138–139, 992 N.Y.S.2d 297 ), and thus, the written waiver cannot cure any deficiencies in the court's oral colloquy (see People v. Brown, 122 A.D.3d at 140, 992 N.Y.S.2d 297 ). Accordingly, 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 ).
The defendant's remaining contentions are without merit.
MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.