People v. Howard, 2019–02194

• Decision Date: 06 May 2020
• Docket Number: 2019–02194,S.C.I. No. 2633/18
• Citation: 121 N.Y.S.3d 622 (Mem),183 A.D.3d 640
• Parties: The PEOPLE, etc., Respondent, v. Gerald HOWARD, Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 640
121 N.Y.S.3d 622 (Mem)

The PEOPLE, etc., Respondent,
v.
Gerald HOWARD, Appellant.

2019–02194
S.C.I. No. 2633/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 13, 2020
May 6, 2020

Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill of counsel; Anmari Guerrero on the memorandum), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gia L. Morris, J.), imposed January 10, 2019, 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 because the Supreme Court's colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 561–62, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *8 ; People v. McDowell, 181 A.D.3d 716, 117 N.Y.S.3d 854 ) and failed to inform the defendant that appellate review remained available for select issues (see People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882 ). Moreover, these defects were not cured by the terms of the standard written appeal waiver form, which not only lacked detail and repeated many of the mischaracterizations contained in the court's colloquy, but further misstated that the defendant was giving up the right to all postconviction relief separate from the direct appeal (see People v. Thomas, 34 N.Y.3d at 561–62, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *8). 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 ).

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