People v Tang

People v Tang 2023 NY Slip Op 06541 Decided on December 20, 2023 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 December 20, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
ROBERT J. MILLER
LARA J. GENOVESI
JANICE A. TAYLOR
LAURENCE L. LOVE, JJ.
2022-03968
(Ind. No. 831/21)

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

v

Renjie Tang, appellant.

Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; Miles Palminteri on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Ira H. Margulis, J.), imposed May 13, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence 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, since the Supreme Court did not discuss the appeal waiver until after the defendant had already admitted his guilt as part of the plea agreement (see People v Blake, 210 AD3d 901; People v Diallo, 196 AD3d 598). Moreover, the court's colloquy improperly suggested that waiving the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish (see People v Posy, 165 AD3d 1176). Thus, the defendant's purported waiver of his right to appeal does not preclude appellate review of his excessive sentence claim.

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

BRATHWAITE NELSON, J.P., MILLER, GENOVESI, TAYLOR and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court