People v. Brenner

People v Brenner (2021 NY Slip Op 02306)

People v Brenner

2021 NY Slip Op 02306

Decided on April 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 April 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.

2019-09888
(Ind. No. 293/18)

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

v

Thomas . Brenner, appellant.

Salvatore C. Adamo, New York, NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered February 20, 2019, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported appeal waiver was invalid. The County Court's oral colloquy and the written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief (see People v Bisono, 36 NY3d 1013; People v Thomas, 34 NY3d 545). Accordingly, the purported appeal waiver does not preclude appellate review of the defendant's contention that his sentence was excessive.

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

The defendant was not deprived of the effective assistance of counsel (see Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708).

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

ENTER:

Aprilanne Agostino

Clerk of the Court