Opinion
2018–07585 Ind. No. 7126/17
05-05-2021
The PEOPLE, etc., respondent, v. Alex TALBOT, appellant.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael Bierce of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael Bierce of counsel), for respondent.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered May 17, 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, intelligently, and voluntarily 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, 557–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). The Supreme Court's oral colloquy mischaracterized the rights encompassed by the appeal waiver by, inter alia, indicating that the waiver was an absolute bar to a direct appeal, no attorney would assist the defendant on an appeal, and no higher court would review the proceedings (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 at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Kyra J., 180 A.D.3d 929, 929, 115 N.Y.S.3d 905 ). The written waiver form, which merely stated that the sentence and conviction would be final, did not cure the infirmities in the court's colloquy (see People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Whitlock, 189 A.D.3d 1473, 1473, 134 N.Y.S.3d 725 ; People v. Garcia, 189 A.D.3d 879, 880, 137 N.Y.S.3d 136 ). Consequently, the purported waiver does not preclude appellate review of the contention raised by the defendant on this appeal.
Nevertheless, the defendant's contention that his conviction of the felony of criminal possession of a firearm ( Penal Law § 265.01–b ) violated due process, equal protection, and the rule of lenity because the same conduct is punishable as a misdemeanor as criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ; People v. Cesar, 131 A.D.3d 223, 227, 14 N.Y.S.3d 100 ), and, in any event, 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. Hope, 192 A.D.3d 1044, 141 N.Y.S.3d 317, 2021 N.Y. Slip Op. 01787 ; see also People v. Roberts, 31 N.Y.3d 406, 423–424, 79 N.Y.S.3d 597, 104 N.E.3d 701 ).
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.