Opinion
02-14-2024
The PEOPLE, etc., respondent, v. Tyler HALL, appellant.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Rebecca Siegel on the memorandum), for respondent.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Rebecca Siegel on the memorandum), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, CARL J. LANDICINO, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William M. Harrington, J.), imposed September 16, 2022, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
Contrary to the People’s contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Adyl K., 187 A.D.3d 1208, 1208–1209, 131 N.Y.S.3d 642). The Supreme Court did not discuss the appeal waiver with the defendant until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Heft, 220 A.D.3d 806, 196 N.Y.S.3d 177; People v. Blake, 210 A.D.3d 901, 901, 178 N.Y.S.3d 201; People v. Adyl K., 187 A.D.3d at 1208, 131 N.Y.S.3d 642). Moreover, the court’s colloquy regarding the waiver of the right to appeal, which included a statement that, "[b]y pleading guilty[,] you would also be giving up your right to. appeal," did not "make it clear to the defendant that an appeal waiver is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v. Fortier, 130 A.D.3d 642, 643, 12 N.Y.S.3d 283 [internal quotation marks omitted]; see People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59). The written waiver of the right to appeal did not cure these deficiencies, as the court did not ascertain on the record whether the defendant had read the written waiver, discussed it with his attorney, or was aware of its contents (see People v. Mitchell, 201 A.D.3d 818, 157 N.Y.S.3d 388; People v. Yancy, 165 A.D.3d 711, 712, 85 N.Y.S.3d 98).
Nonetheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
DILLON, J.P., CHRISTOPHER, DOWLING and LANDICINO, JJ., concur.