People v. Vargas , 2020 NY Slip Op 06156 ( 2020 )

People v Vargas (2020 NY Slip Op 06156)

People v Vargas

2020 NY Slip Op 06156

Decided on October 28, 2020

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 28, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.

2019-06063

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

v

Alex Vargas, appellant. (S.C.I. No. 403/19)

Janet E. Sabel, New York, NY (Katheryne M. Martone of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira-Koessler of counsel; Eleanor Reilly 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 (Bruna L. DiBiase, J.), imposed April 15, 2019, 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 Howard, 183 AD3d 640, People v Wilkinson, 176 AD3d 879, 880). 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 (see People v Thomas, 34 NY3d 545, 564-566; People v Howard, 183 AD3d at 640; People v Wilkinson, 176 AD3d at 880).

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

MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court