Opinion
2019–08151 S.C.I. No. 743/19
10-28-2020
The PEOPLE, etc., Respondent, v. Joseph I. HARRIS, Appellant.
Laurette D. Mulry, Central Islip, N.Y. (Amanda E. Schaefer of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Laurette D. Mulry, Central Islip, N.Y. (Amanda E. Schaefer of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Karen M. Wilutis, J.), imposed June 10, 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 record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The County Court adequately explained to the defendant the nature of the right to appeal and distinguished that right from the rights automatically forfeited upon pleading guilty. However, the court mischaracterized the effect of the waiver on the defendant's right to appeal. Specifically, the court, after explaining to the defendant that an appeal is a proceeding before a higher court where he could argue that the trial court committed certain errors, concluded by stating that "[b]y waiving or giving up the right to appeal, you are agreeing to end this proceeding entirely at the time of sentencing, and to accept as reasonable the sentence imposed." This conclusion incorrectly conveyed that an appellate court would have no authority to review the sentence and failed to inform the defendant that, even after pleading guilty, appellate review remained for select issues, including the voluntariness of the plea and appeal waiver, the legality of the sentence, and the jurisdiction of the court (see People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 ; People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ; People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Valentin, 186 A.D.3d 752, 127 N.Y.S.3d 283 ).
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.