People v. Rabidou , 2023 NY Slip Op 01692 ( 2023 )

People v Rabidou (2023 NY Slip Op 01692)

People v Rabidou

2023 NY Slip Op 01692

Decided on March 29, 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 March 29, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ANGELA G. IANNACCI
PAUL WOOTEN
LILLIAN WAN, JJ.

2020-01519
(Ind. No. 2347/19)

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

v

Donald Rabidou, appellant.

Twyla Carter, New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Ronald Eniclerico of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Deborah Stevens Modica, J.), imposed January 28, 2020, 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 defendant's purported waiver of his right to appeal was invalid. The defendant's written waiver mischaracterized the nature of the waiver as a forfeiture of the attendant right to counsel and poor person relief (see People v Thomas, 34 NY3d 545; People v Martinez, 209 AD3d 765, 766), and as encompassing an absolute bar to the pursuit of postconviction collateral relief, including relief pursuant to CPL 440.10 and 440.20 (see People v Reynolds, 186 AD3d 1535, 1535). These incorrect statements were not corrected by the Supreme Court during its oral appeal waiver colloquy (see People v Santillan, 200 AD3d 1074, 1075). Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim (see People v Lorenzo-Perez, 203 AD3d 847, 847).

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

CONNOLLY, J.P., IANNACCI, WOOTEN and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court