Opinion
2019–10604 Ind. No. 2040/18
04-14-2021
The PEOPLE, etc., respondent, v. Cardell VAUGHAN, appellant.
Janet E. Sabel, New York, N.Y. (Jonathan Garelick of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Christopher Blira–Koessler and Johnnette Traill of counsel; Deanna Russo on the memorandum), for respondent.
Janet E. Sabel, New York, N.Y. (Jonathan Garelick of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Christopher Blira–Koessler and Johnnette Traill of counsel; Deanna Russo on the memorandum), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Steven W. Paynter, J.), imposed August 8, 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 defendant's purported waiver of his right to appeal was invalid because, inter alia, the Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing a bar to filing an appellate brief and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 560–564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Sealey, 187 A.D.3d 1067, 131 N.Y.S.3d 179 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ). These defects were not cured by the terms of the written appeal waiver form, which repeated many of the mischaracterizations contained in the court's oral colloquy (see People v. Sealey, 187 A.D.3d 1067, 131 N.Y.S.3d 179 ; 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. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ; 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 ).
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.