187 A.D.3d 1221
N.Y. App. Div.
2020

The People of the State of New York, respondent, v Elijah Underwood, appellant.

2019-03279 (Ind. No. 18-00451)

Appellate Division of the Supreme Court of the State of New York, Second Department

October 28, 2020

2020 NY Slip Op 06155

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.

MARK C. DILLON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN SYLVIA O. HINDS-RADIX LINDA CHRISTOPHER, JJ.

Walter J. Storey, Goshen, NY, for appellant.

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

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (Craig Stephen Brown, J.), imposed March 14, 2019, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 NY3d 257). The County Court mischaracterized the nature of the right to appeal by stating that the defendant‘s sentence and conviction would be final (see People v Thomas, 34 NY3d 545), and the written waiver form did not overcome the deficiencies in the court‘s explanation of the right to appeal, as it did not contain clarifying language that appellate review remained available for select issues (see id.). Thus, the purported waiver does not preclude this Court‘s review of the defendant‘s excessive sentence claim (see People v Fuller, 163 AD3d 715).

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

DILLON, J.P., AUSTIN, ROMAN, HINDS-RADIX and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court