Opinion
2019–11587 Ind. No. 10122/19
12-29-2021
The PEOPLE, etc., respondent, v. Sergio SANTILLAN, appellant.
Patricia Pazner, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Jacob Aboodi on the brief), for respondent.
Patricia Pazner, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Roni Piplani of counsel; Jacob Aboodi on the brief), for respondent.
ROBERT J. MILLER, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Mary L. Bejarano, J.), rendered September 10, 2019, convicting him of criminal sale of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed mandatory surcharges and fees; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid. The defendant's written waiver incorrectly stated that the appeal waiver included a forfeiture of the attendant right to counsel and poor person relief (see People v. Brenner, 193 A.D.3d 875, 142 N.Y.S.3d 389 ), and mischaracterized the appellate rights waived as encompassing an absolute bar to the pursuit of postconviction collateral relief, including relief pursuant to CPL 440.10 and 440.20 (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Reynolds, 186 A.D.3d 1535, 129 N.Y.S.3d 495 ). These incorrect statements were not corrected by the Supreme Court during its oral appeal waiver colloquy (see People v. Reynolds, 186 A.D.3d 1535, 129 N.Y.S.3d 495 ). Moreover, during the oral appeal waiver colloquy, the court conflated the waiver of the right to appeal with the defendant's waiver of his right to a trial by pleading guilty (see People v. Simpson, 184 A.D.3d 677, 678, 123 N.Y.S.3d 846 ). In addition, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Habersham, 186 A.D.3d 854, 854–855, 127 N.Y.S.3d 775 ; People v. Kang, 183 A.D.3d 640, 641, 121 N.Y.S.3d 640 ).
However, contrary to the defendant's contention, the period of postrelease supervision imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
As consented to by the People, we modify the judgment by vacating the mandatory surcharges and fees imposed on the defendant at sentencing (see People v. Henry P.-M., 196 A.D.3d 650, 148 N.Y.S.3d 392 ; People v. Dyshawn B., 196 A.D.3d 638, 152 N.Y.S.3d 131 ; People v. Johnson, 193 A.D.3d 1076, 143 N.Y.S.3d 222 ).
MILLER, J.P., BARROS, BRATHWAITE NELSON and WOOTEN, JJ., concur.