| People v Fishbein |
| 2020 NY Slip Op 06544 [188 AD3d 909] |
| November 12, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Fishbein, Appellant. |
Janet E. Sabel, New York, NY (Jose David Rodriguez Gonzalez of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and ChristopherBlira-Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Deborah Stevens Modica, J.), imposed October 30, 2018, upon his plea ofguilty, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid. The defendant's writtenwaiver of the right to appeal misstated the applicable law and was misleading (see People v Howard, 183 AD3d640, 640 [2020]). Moreover, the Supreme Court's colloquy conflated the discussion ofappellate rights with other issues raised in the written waiver, including the waiver of thedefendant's right to challenge an increased sentence that could be imposed if he failed to live upto conditions imposed pending sentencing (see People v Thomas, 34 NY3d 545, 565 [2019]; People v Suarez-Montoya, 183 AD3d765, 765 [2020]).
However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Leventhal, Miller, Duffy and LaSalle, JJ., concur.