Opinion
2021-05870 Ind. 17-00423
10-27-2021
The People of the State of New York, respondent, v. Donald Jones, appellant.
Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.
Thomas R. Villecco, Jericho, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered December 10, 2018, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 N.Y.3d 257). The County Court's colloquy and the written appeal waiver form "mischaracterize[d] the nature or effect of a waiver that limits the scope of appellate review" (People v Christopher B., 184 A.D.3d 657, 659), and "'the totality of the circumstances" do not indicate that the defendant nevertheless "'understood the nature of the appellate rights being waived'" (id. at 659, quoting People v Thomas, 34 N.Y.3d 545, 559; see People v Burbridge, 194 A.D.3d 831, 832; People v Brown, 193 A.D.3d 875, 875). Accordingly, the defendant's waiver was invalid and does not preclude our review of his excessive sentence claim (see People v Diallo, 196 A.D.3d 598; People v Mohmoh, 192 A.D.3d 915, 915-916; People v Christopher B., 184 A.D.3d at 660).
Nonetheless, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
CHAMBERS, J.P., AUSTIN, DUFFY, BARROS and FORD, JJ., concur.