Opinion
2022–05611 Ind. No. 70840/21
10-11-2023
The PEOPLE, etc., respondent, v. Tyshaun DUKE, appellant.
Patricia Pazner, New York, NY (David P. Greenberg of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
Patricia Pazner, New York, NY (David P. Greenberg of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira–Koessler of counsel; Deanna Russo on the memorandum), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Karen Gopee, J.), imposed October 25, 2019, 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 (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 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's written waiver incorrectly stated that the appeal waiver included a forfeiture of the attendant right to counsel and poor person relief (see People v. Ali, 216 A.D.3d 993, 994, 189 N.Y.S.3d 273 ; People v. Santillan, 200 A.D.3d 1074, 1075, 155 N.Y.S.3d 821 ; People v. Brenner, 193 A.D.3d 875, 875, 142 N.Y.S.3d 389 ), and mischaracterized the appellate rights waived as encompassing an absolute bar to the pursuit of postconviction collateral relief in both state and federal courts separate from direct appeal (see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Ali, 216 A.D.3d at 994, 189 N.Y.S.3d 273 ). These incorrect statements were not corrected by the Supreme Court during its oral appeal waiver colloquy (see People v. Ali, 216 A.D.3d at 994, 189 N.Y.S.3d 273 ; People v. Santillan, 200 A.D.3d at 1075, 155 N.Y.S.3d 821 ). Further, both the court's colloquy and the written waiver form improperly suggested that the waiver may be an absolute bar to the taking of an appeal, and neither the colloquy nor the written waiver form contained any clarifying language that appellate review remained available for select issues (see People v. Bisono, 36 N.Y.3d at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Garcia, 189 A.D.3d 879, 880–881, 137 N.Y.S.3d 136 ; People v. Habersham, 186 A.D.3d 854, 854, 127 N.Y.S.3d 775 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BARROS, J.P., CHAMBERS, FORD and VOUTSINAS, JJ., concur.