Opinion
No. 2022-05448 Ind. No. 371/19
02-14-2024
The People of the State of New York, respondent, v. Juan Linares, appellant.
Patricia Pazner, New York, NY (Denise A. Corsí of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (James J. Gandia of counsel), for respondent.
Patricia Pazner, New York, NY (Denise A. Corsí of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (James J. Gandia of counsel), for respondent.
BETSY BARROS, J.P., PAUL WOOTEN, BARRY E. WARHIT, JANICE A. TAYLOR, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), imposed May 13, 2022, 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 demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 N.Y.3d 545). The Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing a challenge to the legality of the sentence (see People v Lopez, 6 N.Y.3d 248, 255). Moreover, both the court's colloquy and the defendant's 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 1013, 1017; People v Duke, 220 A.D.3d 804, 805). Further, the court did not discuss the appeal waiver with the defendant until after the defendant had already admitted his guilt as part of the plea agreement (see People v Blake, 210 A.D.3d 901; People v Diallo, 196 A.D.3d 598). Accordingly, under the circumstances of this case, including the defendant's lack of prior experience with the criminal justice system (see People v Bradshaw, 18 N.Y.3d 257, 264-265), the defendant's purported appeal waiver was invalid and does not preclude appellate review of his excessive sentence claim.
However, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur.