People v Kelley, 2019 NY Slip Op 04202 [172 AD3d 1406]

May 29, 2019

Appellate Division, Second Department

[*1]

The People of the State of New York, Respondent,

v

Raya Kelley, Appellant.

Paul Skip Laisure, New York, NY (Sean Nuttall of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Christopher Blire-Koessler of counsel; Victoria Randall on the memorandum), for respondent.

Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Suzanne J. Melendez, J.), imposed August 3, 2017, upon her plea of guilty, on the ground that the sentence was excessive.

Ordered that the sentence is affirmed.

The defendant’s purported waiver of her right to appeal was invalid because the Supreme Court’s colloquy conflated the right to appeal with the rights that are automatically forfeited on a plea of guilty ( see People v Johnson , 165 AD3d 702 [2018]; People v Ortizcora , 163 AD3d 1001 [2018]; People v Resnick , 159 AD3d 724 [2018]). 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]). Rivera, J.P., Hinds-Radix, Brathwaite Nelson and Iannacci, JJ., concur..