Opinion
2019-06193 Ind. No. 6443/18
10-21-2020
The PEOPLE, etc., respondent, v. Gavin PELLEW, appellant.
Paul Skip Laisure, New York, NY (Lynn W.L. Fahey of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel; Alastair Allen on the memorandum), for respondent.
Paul Skip Laisure, New York, NY (Lynn W.L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel; Alastair Allen on the memorandum), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Sharen D. Hudson, J.), imposed May 28, 2019, 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 reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see 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 and the written waiver "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. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Morocho, 184 A.D.3d 876, 124 N.Y.S.3d 241 ). Thus, the purported waiver does not preclude this Court's review of the defendant's excessive sentence claim (see People v. Morocho, 184 A.D.3d 876, 124 N.Y.S.3d 241 ). However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, COHEN, CONNOLLY and WOOTEN, JJ., concur.