People v. Joseph

• Decision Date: 21 October 2020
• Docket Number: Ind. No. 101/15,2016–01591
• Parties: The PEOPLE, etc., respondent, v. Hermon JOSEPH, appellant.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1050
131 N.Y.S.3d 267 (Mem)

The PEOPLE, etc., respondent,
v.
Hermon JOSEPH, appellant.

2016–01591
Ind. No. 101/15

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

Submitted - September 30, 2020
October 21, 2020

Paul Skip Laisure, New York, NY (Dina Zloczower of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

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

131 N.Y.S.3d 268

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Stephen J. Rooney, J.), rendered January 25, 2016, convicting him of criminal possession of stolen property in the fourth degree, upon his plea of guilty, and imposing a definite term of imprisonment of one year.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence from a definite term of imprisonment of one year to a definite term of imprisonment of 364 days; as so modified, the judgment 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 failed to inform the defendant that appellate review remained available for certain issues (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ). Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court's explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues (see People v. Contreras, 183 A.D.3d 759, 121 N.Y.S.3d 665 ). Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant's sentence was excessive (see People v. Fuller, 163 A.D.3d 715, 76...