| People v Thomas |
| 2020 NY Slip Op 05949 [187 AD3d 1069] |
| October 21, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tony Thomas, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel; Marielle Burnett on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (WilliamMiller, J.), rendered October 25, 2018, convicting him of robbery in the first degree, upon hisplea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of anorder of protection issued at the time of sentencing will be reviewed.
Ordered that upon the appeal from the judgment, so much of the order of protection asdirected that it remain in effect until and including October 25, 2038, is vacated, as a matter ofdiscretion in the interest of justice, and the matter is remitted to the Supreme Court, KingsCounty, for a new determination of the duration of the order of protection; and it is further,
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because the SupremeCourt's colloquy mischaracterized the appellate rights waived as encompassing an absolute bar tothe taking of a direct appeal, and failed to inform the defendant that appellate review remainedavailable for certain issues (see People vThomas, 34 NY3d 545 [2019]; People v Howard, 183 AD3d 640 [2020]). Further, the writtenwaiver form was insufficient to overcome the deficiencies in the court's explanation of the waiverof the right to appeal, since it did not contain language clarifying that appellate review remainedavailable for certain issues (see People vContreras, 183 AD3d 759 [2020]). Thus, the purported waiver does not preclude thisCourt's review of the defendant's excessive sentence claim (see People v Fuller, 163 AD3d 715 [2018]).
However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's challenge to the duration of the order of protection issued at the time ofsentencing is unpreserved for appellate review (see People v Deal, 115 AD3d 975, 976 [2014]). Nevertheless, wereach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6][a]; People v Ramos, 164 AD3d922, 923 [2018]). As the People concede, the duration of the order of protection exceededthe maximum period permissible under CPL 530.13 (4). Accordingly, we vacate so much of theorder of protection as directed that it remain in effect until and including October 25, 2038, andremit the matter to the Supreme Court, Kings County, for a new determination of the duration ofthe order of protection in accordance with CPL 530.13 (4) (see People v Sanchez, 175 AD3d 1567 [2019]; People vRamos, 164 AD3d at 924). Balkin, J.P., Chambers, Cohen, Connolly and Wooten, JJ.,concur.