Opinion
2019–03953 S.C.I. No. 334/19
08-26-2020
The PEOPLE, etc., respondent, v. James E. HABERSHAM, appellant.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Ellen C. Abbot of counsel; Kathleen Halliday on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Ellen C. Abbot of counsel; Kathleen Halliday 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, Queens County (Bruna L. DiBiase, J.), imposed March 12, 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 demonstrates that the defendant did not waive his right to appeal knowingly, intelligently and voluntarily (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, citing People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ). 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, 121 N.Y.S.3d 622 ; People v. Wilkinson, 176 A.D.3d 879, 107 N.Y.S.3d 896 ), and further misstated that the defendant was giving up the right to poor person relief and postconviction remedies in both state and federal courts separate from direct appeal (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Suarez–Montoya, 183 A.D.3d 765, 121 N.Y.S.3d 914 ). The Supreme Court's terse colloquy at the plea proceeding was insufficient to cure the defects of the written waiver (see People v. Thomas, 34 N.Y.3d at 564–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Chy, 184 A.D.3d 664, 125 N.Y.S.3d 130 ).
Further, the Supreme Court's colloquy and the written waiver form failed to adequately advise the defendant of the nature of his right to appeal and suggested that the waiver may be an absolute bar to the taking of an appeal (see People v. Wilson, 183 A.D.3d 922, 122 N.Y.S.3d 545 ; People v. Christopher B, 184 A.D.3d 657, 125 N.Y.S.3d 149 ; People v. Weeks, 182 A.D.3d 539, 122 N.Y.S.3d 347 ; People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). Neither the waiver form nor the oral colloquy contained any clarifying language that the defendant retained the right to take an appeal after pleading guilty and that, even after waiving the right to appeal, appellate review remained available for select issues, including the voluntariness of the plea and the appeal waiver, legality of the sentence, and the jurisdiction of the court (see People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ; People v. Baptiste, 181 A.D.3d 696, 117 N.Y.S.3d 882 ).
In addition, the Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Moncrieft, 168 A.D.3d 982, 92 N.Y.S.3d 335 ; People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim (see People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575 ).
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.