People v. Fishbein

People v Fishbein (2020 NY Slip Op 06544) People v Fishbein 2020 NY Slip Op 06544 Decided on November 12, 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 November 12, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL ROBERT J. MILLER COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2019-00920 (Ind. No. 709/17) [*1]The People of the State of New York, respondent, v Michael Fishbein, appellant. Janet E. Sabel, New York, NY (Jose David Rodriguez Gonzalez of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Christopher Blira-Koessler of counsel; Lorrie A. Zinno 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 October 30, 2018, 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. The defendant's written waiver of the right to appeal misstated the applicable law and was misleading (see People v Howard, 183 AD3d 640, 640). Moreover, the Supreme Court's colloquy conflated the discussion of appellate rights with other issues raised in the written waiver, including the waiver of the defendant's right to challenge an increased sentence that could be imposed if he failed to live up to conditions imposed pending sentencing (see People v Thomas, 34 NY3d 545, 565; People v Suarez-Montoya, 183 AD3d 765, 765). However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). MASTRO, J.P., LEVENTHAL, MILLER, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court