People v. Lorenzo-Perez

• Citation: 2022 NY Slip Op 01464
• Decision Date: 09 March 2022
• Docket Number: Ind. 16-00086,2017-09780
• Parties: The People of the State of New York, respondent, v. Thomas Lorenzo-Perez, appellant.
• Court: United States State Supreme Court (New York)

2022 NY Slip Op 01464

The People of the State of New York, respondent,
v.
Thomas Lorenzo-Perez, appellant.

No. 2017-09780, Ind. No. 16-00086

Supreme Court of New York, Second Department

March 9, 2022

Warren S. Hecht, Forest Hills, NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel), for respondent.

CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN LARA J. GENOVESI DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Barry E. Warhit, J., at plea; Kevin F. Russo, J., at sentence), rendered January 25, 2017, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545; People v Bradshaw, 18 N.Y.3d 257, 264; People v Lopez, 6 N.Y.3d 248, 256). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" (People v Howard, 183 A.D.3d 640, 640; see People v Momoh, 192 A.D.3d 915, 916; People v Coverdale, 189 A.D.3d 1610, 1610; People v Dixon, 184 A.D.3d 854, 855). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v Thomas, 34 N.Y.3d at 565-566; People v Momoh, 192 A.D.3d at 916; People v Seymour, 189 A.D.3d 1269; People v Dixon, 184 A.D.3d at 855). Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim.

Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

The defendant's contention that his plea of guilty was not voluntary because the County Court failed to inquire into a possible intoxication defense is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the court (see People v Lopez, 71 N.Y.2d 662, 665; People v Barrow, 187 A.D.3d 1034, 1034). Contrary to the defendant's contention, the exception to the preservation requirement does not apply here because...