Opinion
2022–05131 Ind. No. 354/16
08-02-2023
The PEOPLE, etc., respondent, v. Wilbert BOYKIN, appellant.
Alex Smith, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered June 7, 2022, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record does not establish that the defendant's waiver of the right to appeal was knowing, voluntary, and intelligent, as the County Court mischaracterized the nature of the right to appeal by stating that the defendant's conviction and sentence would be final (see People v. Shanks, 37 N.Y.3d 244, 252, 154 N.Y.S.3d 646, 176 N.E.3d 682 ; People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). In addition, the written waiver form did not clarify that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Brown, 195 A.D.3d 943, 146 N.Y.S.3d 514 ). Thus, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim.
Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur.