People v Erdaide, 2023 NY Slip Op 02891 [216 AD3d 1178]

May 31, 2023

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Phillip Erdaide, Appellant.

Patricia Pazner, New York, NY (Victoria L. Benton of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O’Boyle of counsel; Christopher M. Ciccolini on the memorandum), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Toni M. Cimino, J.), imposed February 24, 2022, upon his plea of guilty, on the ground that the sentence was excessive.

Ordered that the sentence is affirmed.

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and poor person relief ( see People v Stewart , 200 AD3d 723 [2021]; People v Howard , 183 AD3d 640 [2020]). Under the circumstances of this case, the defendant’s execution of a written waiver of the right to appeal form did not cure the deficient oral colloquy. Accordingly, the purported waiver does not preclude appellate review of the defendant’s excessive sentence claim.

However, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Barros, J.P., Brathwaite Nelson, Maltese, Ford and Warhit, JJ., concur..