| People v Harris |
| 2020 NY Slip Op 06142 [187 AD3d 1207] |
| October 28, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph I. Harris, Appellant. |
Laurette D. Mulry, Central Islip, NY (Amanda E. Schaefer of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the County Court,Suffolk County (Karen M. Wilutis, J.), imposed June 10, 2019, upon his plea of guilty, on theground that the sentence was excessive.
Ordered that the sentence is affirmed.
Contrary to the People's contention, the record demonstrates that the defendant did notknowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 NY3d545 [2019]). The County Court adequately explained to the defendant the nature of the rightto appeal and distinguished that right from the rights automatically forfeited upon pleadingguilty. However, the court mischaracterized the effect of the waiver on the defendant's right toappeal. Specifically, the court, after explaining to the defendant that an appeal is a proceedingbefore a higher court where he could argue that the trial court committed certain errors,concluded by stating that "[b]y waiving or giving up the right to appeal, you are agreeing to endthis proceeding entirely at the time of sentencing, and to accept as reasonable the sentenceimposed." This conclusion incorrectly conveyed that an appellate court would have no authorityto review the sentence and failed to inform the defendant that, even after pleading guilty,appellate review remained for select issues, including the voluntariness of the plea and appealwaiver, the legality of the sentence, and the jurisdiction of the court (see People v Habersham, 186 AD3d854 [2020]; People v ChristopherB., 184 AD3d 657 [2020]; People v Baptiste, 181 AD3d 696 [2020]). Thus, the purportedwaiver does not preclude appellate review of the defendant's excessive sentence claim (see People v Valentin, 186 AD3d752 [2020]).
Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80 [1982]). Dillon, J.P., Austin, Roman, Hinds-Radix and Christopher, JJ., concur.