Opinion
2018–11694 Ind. 1112/18
10-28-2020
The PEOPLE, etc., Respondent, v. Jeff PLATEL, Appellant.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Lorrie A. Zinno on the memorandum), 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 Supreme Court, Queens County (John F. Zoll, J.), imposed August 23, 2018, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Thomas , 34 N.Y.3d 545, 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The Supreme Court mischaracterized the nature of the waiver by stating, inter alia, that the waiver meant that the defendant's "case wouldn't go to a higher Court," and that "no higher Court will review this case in any manner" (see id. at 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Where, as here, "a trial court has utterly mischaracterized the nature of the right a defendant was being asked to cede, an appellate court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights" ( id. at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [internal quotation marks omitted] ). Further, in light of the defendant's age, lack of experience with the criminal justice system, and mental health history, the court's limited colloquy did not ensure the defendant's understanding of the distinction between the right to appeal and the other rights that are automatically forfeited upon a plea of guilty (see People v. Fuller , 163 A.D.3d 715, 76 N.Y.S.3d 852 ). Further, the written waiver form did not overcome the ambiguities in the court's on-the-record explanation of the right to appeal (see People v. Thomas , 34 N.Y.3d at 568, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Thus, the purported waiver of the right to appeal does not preclude this Court's review of the defendant's excessive sentence claim (see People v. Fuller , 163 A.D.3d at 715, 76 N.Y.S.3d 852 ).
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.