People v Emery

People v Emery 2021 NY Slip Op 04370 Decided on July 14, 2021 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 July 14, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
BETSY BARROS
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
2019-06452
2021-04431

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

v

Shaheed Emery, appellant. (Ind. Nos. 18-00473, 18-00732)

John R. Lewis, Sleepy Hollow, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Orange County (William L. DeProspo, J.), both rendered March 1, 2019, convicting him of criminal possession of a controlled substance in the second degree and criminal sale of a controlled substance in the third degree under Indictment No. 18-00473, and criminal sale of a controlled substance in the third degree under Indictment No. 18-00732, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

Contrary to the People's contention, the defendant's purported appeal waiver was invalid. The written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and the County Court's oral colloquy with the defendant did not cure the ambiguities in the written waiver (see People v Bisono, 36 NY3d 1013; People v Thomas, 34 NY3d 545, 566). Accordingly, the purported appeal waiver does not bar review of the defendant's contention that the sentences imposed were excessive.

Nonetheless, the sentences imposed were not excessive (see CPL 470.15[6][b]; People v Suitte, 90 AD2d 80).

DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court