Opinion
Nos. 2018-06259 2019-02124 S.C.I. Nos. 611/18 612/18
02-09-2022
The People, etc., respondent, v. Anthony Mendez, appellant.
Patricia Pazner, New York, NY (Caitlyn Carpenter of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
Submitted - December 17, 2021.
Patricia Pazner, New York, NY (Caitlyn Carpenter of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
MARK C. DILLON, J.P. COLLEEN D. DUFFY LINDA CHRISTOPHER PAUL WOOTEN, JJ.
DECISION & ORDER
Appeals by the defendant from two judgments of the Supreme Court, Queens County (Gia Morris, J.), both rendered April 19, 2018, convicting him of attempted robbery in the second degree under Superior Court Information No. 611/18, and attempted robbery in the third degree under Superior Court Information No. 612/18, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
As the defendant correctly argues, the record demonstrates that he did not knowingly, voluntarily, and intelligently waive his right to appeal. The Supreme Court's oral colloquy mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief (see People v Thomas, 34 N.Y.3d 545, 565-566; People v Howard, 183 A.D.3d 640). The court failed to clarify that certain issues survive the appeal waiver (see People v Thomas, 34 N.Y.3d at 566). The written waiver and off-the-record conversation with the defendant's counsel were insufficient to cure the deficiencies in the oral colloquy (see People v Stinson, 189 A.D.3d 1271, 1272). Moreover, the written waiver contained improper language indicating, inter alia, that the appeal waiver included a forfeiture of the attendant right to counsel and poor person relief (see People v Brenner, 193 A.D.3d 875). Thus, the purported waiver does not preclude review of the defendant's contentions regarding the sentences imposed.
However, the defendant's contention that the sentences imposed violated the Eighth Amendment to the United States Constitution and article I, section 5, of the New York State Constitution prohibiting cruel and unusual punishment is unpreserved for appellate review (see People v Pena, 28 N.Y.3d 727, 730) and, in any event, without merit (see People v Joseph, 187 A.D.3d 1050, 1051; People v Parsley, 150 A.D.3d 894, 896).
Further, under the circumstances presented, we decline to reduce the sentences imposed in the interest of justice (see People v Lall, 174 A.D.3d 740; People v Suitte, 90 A.D.2d 80).
DILLON, J.P., DUFFY, CHRISTOPHER and WOOTEN, JJ., concur.