People v. Enriquez ( 2021 )

People v Enriquez (2021 NY Slip Op 06187)

People v Enriquez

2021 NY Slip Op 06187

Decided on November 10, 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 November 10, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
COLLEEN D. DUFFY
BETSY BARROS
PAUL WOOTEN, JJ.

2020-00355
(Ind. No. 18-00393)

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

v

Jose Alfredo Enriquez, appellant.

Mary Zugibe Raleigh, Pine Bush, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (Alexander J. H. Ochoa and Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered February 7, 2019, convicting him of sexual abuse in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The record does not establish that the defendant's waiver of the right to appeal was knowing, voluntary, and intelligent, as the County Court mischaracterized the nature of the right to appeal by stating that the defendant's conviction and sentence would be final (see People v Bisono, 36 NY3d 1013, 1017-1018; People v Thomas, 34 NY3d 545, 564-566), and the written waiver form did not clarify that appellate review remained available for select issues (see People v Thomas, 34 NY3d at 566; People v Brown, 195 AD3d 943). Thus, the purported waiver does not preclude appellate review of the defendant's contention that the sentence imposed was excessive.

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

AUSTIN, J.P., DUFFY, BARROS and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Acting Clerk of the Court