Opinion
2021–03271 S.C.I. No. 689/19
05-04-2022
The PEOPLE, etc., respondent, v. Gregg MARINELLI, appellant.
Law Offices of Michael Pollok, PLLC, Red Hook, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Alexander J.H. Ochoa and Andrew R. Kass of counsel), for respondent.
Law Offices of Michael Pollok, PLLC, Red Hook, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Alexander J.H. Ochoa and Andrew R. Kass of counsel), for respondent.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Steven Brown, J.), rendered April 21, 2021, convicting him of criminal possession of a weapon in the second degree and hindering prosecution in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid. The County Court mischaracterized the nature of the right to appeal by stating that the defendant's convictions and sentence would be final (see People v. Shanks, 37 N.Y.3d 244, 252, 154 N.Y.S.3d 646, 176 N.E.3d 682 ; People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ), and the written waiver form did not clarify that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brown, 195 A.D.3d 943, 943, 146 N.Y.S.3d 514 ). Thus, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive. 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 contention that the sentence imposed violated the Eighth Amendment to the United States Constitution and article 1, § 5, of the New York Constitution, prohibiting cruel and unusual punishment, is unpreserved for appellate review (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ; People v. Cerasaro, 179 A.D.3d 832, 113 N.Y.S.3d 884 ).
IANNACCI, J.P., MILLER, MALTESE and DOWLING, JJ., concur.