Opinion
2019–08894 S.C.I. No. 1174/19
11-03-2021
The PEOPLE, etc., respondent, v. Clive T. MORRISON, appellant.
Patricia Pazner, New York, NY (Lynn W.L. Fahey of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira–Koessler of counsel; Jordan Miller on the memorandum), for respondent.
Patricia Pazner, New York, NY (Lynn W.L. Fahey of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira–Koessler of counsel; Jordan Miller on the memorandum), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Bruna L. DiBiase, J.), imposed July 15, 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 does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The defendant's written waiver of the right to appeal misstated the applicable law and was misleading and further misstated that the defendant was giving up the right to poor person relief and postconviction remedies in both state and federal courts separate from direct appeal (see People v. Gaindarpersaud, 188 A.D.3d 718, 719, 131 N.Y.S.3d 652 ; People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 ). The Supreme Court's colloquy was insufficient to cure the defects of the written waiver (see People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 ) and further mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Whitlock, 189 A.D.3d 1473, 134 N.Y.S.3d 725 ; People v. Gaindarpersaud, 188 A.D.3d at 719, 131 N.Y.S.3d 652 ; People v. Contreras, 183 A.D.3d 759, 121 N.Y.S.3d 665 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Fuller, 163 A.D.3d 715, 76 N.Y.S.3d 852 ).
However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., AUSTIN, DUFFY, BARROS and FORD, JJ., concur.