People v Wilkinson

People v Wilkinson 2019 NY Slip Op 07300 Decided on October 9, 2019 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 9, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
JOSEPH J. MALTESE
LINDA CHRISTOPHER, JJ.
2017-12731
(Ind. No. 1128/16)

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

v

Andrew Wilkinson, appellant.

Paul Skip Laisure, New York, NY (Leila Hull of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel; Conor Ward 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 (Richard Buchter, J.), imposed October 25, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's waiver of his right to appeal was invalid. The defendant's written waiver of the right to appeal misstated the applicable law and was misleading (see People v Butler, 49 AD3d 894). Further, the Supreme Court's terse colloquy at the plea proceeding relating to the defendant's waiver of his right to appeal was insufficient to remedy the misleading written waiver. The colloquy also improperly suggested that there was no possibility of any appeal in this case (cf. Garza v Idaho, __ US __, __, 139 S Ct 738, 744, 749-750).

However, the sentence imposed was not excessive (see People v Lopez, 6 NY3d 248, 255-256).

DILLON, J.P., AUSTIN, ROMAN, MALTESE and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court