People v. Wilkinson

• Decision Date: 09 October 2019
• Docket Number: Ind. No. 1128/16,2017-12731
• Citation: 176 A.D.3d 879,107 N.Y.S.3d 896 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Andrew WILKINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 879

107 N.Y.S.3d 896 (Mem)

The PEOPLE, etc., Respondent,

v.Andrew WILKINSON, Appellant.

2017-12731

Ind. No. 1128/16

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

October 9, 2019

Submitted—September 9, 2019

Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel; Conor Ward on the memorandum), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Richard Buchter, J.), imposed October 25, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's waiver of his right to appeal was invalid. The defendant's written waiver of the right to appeal misstated the applicable law and was misleading (see People v. Butler , 49 A.D.3d 894, 854 N.Y.S.2d 506 ). Further, the Supreme Court's terse colloquy at the plea proceeding relating to the defendant's waiver of his right to appeal was insufficient to remedy the misleading written waiver. The colloquy also improperly suggested that there was no possibility of any appeal in this case (cf. Garza v. Idaho , ––– U.S. ––––, 139 S Ct 738, 744, 749–750, 203 L.Ed.2d 77 ).

However, the sentence imposed was not excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.