People v. Suarez-Montoya

People v Suarez-Montoya (2020 NY Slip Op 02812)

People v Suarez-Montoya

2020 NY Slip Op 02812

Decided on May 13, 2020

Appellate Division, Second Department

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.

Decided on May 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
LINDA CHRISTOPHER, JJ.
2018-06678
(Ind. No. 786/17)

Janet E. Sabel, New York, NY (Antonio Villaamil of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Ellen C. Abbot of counsel; Victoria Randall on the memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Deborah Stevens Modica, J.), imposed June 8, 2017, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant's waiver of the right to appeal was invalid, because the Supreme Court incorrectly stated during the discussion of the appeal waiver that the waiver encompassed post-conviction motions (see People v Thomas, _____ NY3d _____, 2019 NY Slip Op 08545). Therefore, the purported waiver does not foreclose appellate review of the issue of whether the sentence imposed was excessive.

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