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People v. Fishbein

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 12, 2020
188 A.D.3d 909 (N.Y. App. Div. 2020)

Opinion

2019–00920 Ind.No. 709/17

11-12-2020

The PEOPLE, etc., Respondent, v. Michael FISHBEIN, Appellant.

Janet E. Sabel, New York, N.Y. (Jose David Rodriguez Gonzalez of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.


Janet E. Sabel, New York, N.Y. (Jose David Rodriguez Gonzalez of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Deborah Stevens Modica, J.), imposed October 30, 2018, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid. The defendant's written waiver of the right to appeal misstated the applicable law and was misleading (see People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ). Moreover, the Supreme Court's colloquy conflated the discussion of appellate rights with other issues raised in the written waiver, including the waiver of the defendant's right to challenge an increased sentence that could be imposed if he failed to live up to conditions imposed pending sentencing (see People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Suarez–Montoya, 183 A.D.3d 765, 765, 121 N.Y.S.3d 914 ).

However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.


Summaries of

People v. Fishbein

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 12, 2020
188 A.D.3d 909 (N.Y. App. Div. 2020)
Case details for

People v. Fishbein

Case Details

Full title:The People of the State of New York, respondent, v. Michael Fishbein…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Nov 12, 2020

Citations

188 A.D.3d 909 (N.Y. App. Div. 2020)
2020 N.Y. Slip Op. 6544
132 N.Y.S.3d 330

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