People v Diaz
2025 NY Slip Op 00330 [234 AD3d 871]
January 22, 2025
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 12, 2025


[*1]
 The People of the State of New York, Respondent,
v
Michael Diaz, Appellant.

Patricia Pazner, New York, NY (Alexa Askari of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel; Anmari Guerrero 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 June 2, 2023, 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 Lawrence, 227 AD3d 829 [2024]; People v Erdaide, 216 AD3d 1178 [2023]). Moreover, the court did not discuss the appeal waiver with the defendant until after he had already admitted his guilt as part of the plea agreement (see People v Lawrence, 227 AD3d 829 [2024]). Under the circumstances of this case, the defendant's execution of a written waiver of the right to appeal did not cure the deficient oral colloquy (see id.). Accordingly, the purported waiver does not preclude appellate review of the defendant's excessive sentence claim.

Nonetheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Barros, J.P., Miller, Ford, Taylor and Golia, JJ., concur.