People v. Wallace

2020 NY Slip Op 05952, 131 N.Y.S.3d 181, 187 A.D.3d 1071

Opinion

People v Wallace (2020 NY Slip Op 05952)

People v Wallace

2020 NY Slip Op 05952

Decided on October 21, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 21, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
LEONARD B. AUSTIN
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.

2018-02875

[*1]The People of the State of New York, respondent,

v

Dwayne Wallace, appellant. (S.C.I. No. 17-00824)

Mary Zugibe Raleigh, Warwick, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered February 1, 2018, convicting him of attempted criminal possession of a controlled substance in the third 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 NY3d 257). The County Court mischaracterized the nature of the right to appeal by stating that the defendant's sentence and conviction would be final (see People v Thomas, 34 NY3d 545), and the written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues (see People v Aquino, 184 AD3d 656, 657; People v Dixon, 183 AD3d 837; People v McDowell, 181 AD3d 716). Thus, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

SCHEINKMAN, P.J., AUSTIN, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court