People v Hernandez, 2023 NY Slip Op 06536 [222 AD3d 885]

December 20, 2023

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Lenin Nunez Hernandez, Appellant.

Laurette D. Mulry, Riverhead, NY (Amanda E. Schaefer of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Edward A. Bannon and Glenn Green of counsel), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Suffolk County (Richard Ambro, J.), imposed October 6, 2022, 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 because the Supreme Court’s oral colloquy incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal ( see People v Thomas , 34 NY3d 545 , 564 [2019]; People v Dixon , 184 AD3d 854 , 855 [2020]). The written waiver form did not overcome the ambiguities 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 People v Tellado , 181 AD3d 830 , 831 [2020]). Thus, 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., Chambers, Ford and Voutsinas, JJ., concur..