Opinion
2018–07862 Ind. No. 2841/17
03-24-2021
The PEOPLE, etc., respondent, v. Lester HOPE, appellant.
Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jane Tully, J.), rendered June 6, 2018, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The Supreme Court's colloquy "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief" ( People v. Tayeh, 181 A.D.3d 726, 727, 117 N.Y.S.3d 606 ; see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Harris, 187 A.D.3d 1207, 131 N.Y.S.3d 593 ; People v. Pellew, 187 A.D.3d 1060, 131 N.Y.S.3d 266 ; People v. Contreras, 183 A.D.3d 759, 121 N.Y.S.3d 665 ). The written waiver of the right to appeal, which stated that the sentence and conviction would be final and did not contain clarifying language that appellate review remained available for select issues, did not correct the defect (see People v. Soler, 189 A.D.3d 1086, 133 N.Y.S.3d 833 ; People v. Contreras, 183 A.D.3d 759, 121 N.Y.S.3d 665 ). Viewing the deficiencies in the oral colloquy and the written waiver in the context of the record and considering the totality of the circumstances, it cannot be said that the defendant " ‘comprehended the nature [and consequences] of the waiver of appellate rights’ " ( People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 435, 164 N.E.3d 239, 241, quoting People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Thus, the purported waiver does not preclude this Court's review of the defendant's claim.
However, the defendant's contention that his rights to due process of law and equal protection of the laws were violated because he was convicted of the felony crime of criminal possession of a firearm ( Penal Law § 265.01–b ), which makes punishable the same conduct as the misdemeanor crime of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[1] ) when that offense is committed through the possession of a firearm, is unpreserved for appellate review (see People v. Patino, 259 A.D.2d 503, 503–504, 688 N.Y.S.2d 155 ; People v. Pisano, 105 A.D.2d 1156, 1157, 482 N.Y.S.2d 593 ; see also People v. Davidson, 98 N.Y.2d 738, 751 N.Y.S.2d 161, 780 N.E.2d 972 ; People v. Santiago, 97 A.D.3d 707, 947 N.Y.S.2d 890 ). In any event, the defendant's contention is without merit (see United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 ; People v. Vaccaro, 44 N.Y.2d 885, 886, 407 N.Y.S.2d 631, 379 N.E.2d 159 ; People v. Eboli, 34 N.Y.2d 281, 290, 357 N.Y.S.2d 435, 313 N.E.2d 746 ; People v. Greene, 57 A.D.3d 1004, 1005, 871 N.Y.S.2d 323 ).
CHAMBERS, J.P., MILLER, LASALLE and IANNACCI, JJ., concur.