Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545; People v Bradshaw, 18 N.Y.3d 257, 264; People v Lopez, 6 N.Y.3d 248, 256). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" (People v Howard, 183 A.D.3d 640, 640; see People v Lorenzo-Perez, 203 A.D.3d 847, 847; People v Momoh, 192 A.D.3d 915, 916; People v Coverdale, 189 A.D.3d 1610, 1610). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v Thomas, 34 N.Y.3d at 565-566; People v Lorenzo-Perez, 203 A.D.3d at 847; People v Momoh, 192 A.D.3d at 916; People v Seymour, 189 A.D.3d 1269).
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545; People v Bradshaw, 18 N.Y.3d 257, 264; People v Lopez, 6 N.Y.3d 248, 256). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" (People v Howard, 183 A.D.3d 640, 640; see People v Momoh, 192 A.D.3d 915, 916; People v Coverdale, 189 A.D.3d 1610, 1610; People v Dixon, 184 A.D.3d 854, 855). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v Thomas, 34 N.Y.3d at 565-566; People v Momoh, 192 A.D.3d at 916; People v Seymour, 189 A.D.3d 1269; People v Dixon, 184 A.D.3d at 855).
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (seePeople 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 ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" ( People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ; seePeople v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Coverdale, 189 A.D.3d 1610, 1610, 136 N.Y.S.3d 335 ; People v. Dixon, 184 A.D.3d 854, 855, 124 N.Y.S.3d 575 ). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (seePeople v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Momoh, 192 A.D.3d at 916, 140 N.Y.S.3d 778 ; People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211 ; People v. Dixon, 184 A.D.3d at 855, 124 N.Y.S.3d 575 ).
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545; People v Bradshaw, 18 N.Y.3d 257, 264; People v Lopez, 6 N.Y.3d 248, 256). The County Court's colloquy on this issue "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" (People v Howard, 183 A.D.3d 640, 640; see People v Momoh, 192 A.D.3d 915, 916; People v Coverdale, 189 A.D.3d 1610, 1610; People v Dixon, 184 A.D.3d 854, 855). The written waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues, did not overcome the court's error (see People v Thomas, 34 N.Y.3d at 565-566; People v Momoh, 192 A.D.3d at 916; People v Seymour, 189 A.D.3d 1269; People v Dixon, 184 A.D.3d at 855).
Disposition: Applications for Criminal Leave to appeal denied Decision Reported Below: 2d Dept: 192 A.D.3d 915 (Rockland)
The County Court’s colloquy mischaracterized the nature of the appeal waiver by stating that the defendant’s conviction and sentence would be final, thereby suggesting that the waiver may be an absolute bar to the taking of an appeal (see People v. Boykin, 219 A.D.3d at 499, 192 N.Y.S.3d 260; People v. Rivera, 201 A.D.3d at 674, 156 N.Y.S.3d 754). In addition, the written waiver form did not clarify that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Boykin, 219 A.D.3d at 499, 192 N.Y.S.3d 260; People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778). Thus, the defendant’s purported appeal waiver does not preclude review of the issues raised by the defendant on appeal.
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545, 564; People v Boykin, 219 A.D.3d 499; People v Rivera, 201 A.D.3d 673, 674). The County Court's colloquy mischaracterized the nature of the appeal waiver by stating that the defendant's conviction and sentence would be final, thereby suggesting that the waiver may be an absolute bar to the taking of an appeal (see People v Boykin, 219 A.D.3d at 499; People v Rivera, 201 A.D.3d at 674). In addition, the written waiver form did not clarify that appellate review remained available for select issues (see People v Thomas, 34 N.Y.3d at 566; People v Boykin, 219 A.D.3d at 499; People v Momoh, 192 A.D.3d 915, 916). Thus, the defendant's purported appeal waiver does not preclude review of the issues raised by the defendant on appeal.
The defendant was sentenced, as a second violent felony offender, to a negotiated term of imprisonment. The defendant's challenge to the procedure used to adjudicate him a second violent felony offender (see CPL 400.15) is unpreserved for appellate review (see People v Oliver, 63 N.Y.2d 973, 974-975; People v Pellegrino, 60 N.Y.2d 636, 637; People v Momoh, 192 A.D.3d 915, 916-917). Moreover, as a condition of his plea of guilty, the defendant waived his right to controvert the second violent felony offender statement offered by the People (see People v Blackwell, 151 A.D.2d 686, 686; see also People v Jackson, 87 A.D.3d 552, 554; People v Gottschalk, 204 A.D.2d 567, 567).
ORDERED that the judgment is affirmed. Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (seePeople v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Fahey, 200 A.D.3d 978, 978–979, 158 N.Y.S.3d 247 ; People v. Brown, 195 A.D.3d 943, 943, 146 N.Y.S.3d 514 ; People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ). Accordingly, the purported appeal waiver does not limit the scope of this Court's appellate review (see generallyPeople v. Batista, 167 A.D.3d 69, 79, 86 N.Y.S.3d 492 ).
ORDERED that the judgment is affirmed. Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Shanks, 37 N.Y.3d 244, 253; People v Thomas, 34 N.Y.3d 545, 566; People v Fahey, 200 A.D.3d 978, 978-979; People v Brown, 195 A.D.3d 943, 943; People v Momoh, 192 A.D.3d 915, 916; People v Howard, 183 A.D.3d 640, 640). Accordingly, the purported appeal waiver does not limit the scope of this Court's appellate review (see generally People v Batista, 167 A.D.3d 69, 79).