Opinion
2018–02875 S.C.I. No. 17-00824
10-21-2020
The PEOPLE, etc., Respondent, v. Dwayne WALLACE, Appellant.
Mary Zugibe Raleigh, Warwick, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
Mary Zugibe Raleigh, Warwick, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered February 1, 2018, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
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 County Court mischaracterized the nature of the right to appeal by stating that the defendant's sentence and conviction would be final (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ), and the written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues (see People v. Aquino, 184 A.D.3d 656, 657, 123 N.Y.S.3d 513 ; People v. Dixon, 183 A.D.3d 837, 122 N.Y.S.3d 560 ; People v. McDowell, 181 A.D.3d 716, 117 N.Y.S.3d 854 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
SCHEINKMAN, P.J., AUSTIN, COHEN and HINDS–RADIX, JJ., concur.