waiver as an absolute bar in New York

2025Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v T

2025In appeal No. 2, we agree with defendant that his purported waiver of the right to appeal "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Hussein , 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2025In appeal No. 2, we agree with defendant that his purported waiver of the right to appeal "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Hussein , 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2025In appeal No. 2, we agree with defendant that his purported waiver of the right to appeal "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Hussein , 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]).

2024Supreme Court's oral colloquy mischaracterized the waiver as an absolute bar to the taking of an appeal ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Davis , 188 AD3d 1731, 1731 [4th Dept 2020], lv denied 37 NY3d 991 [2021]) and, although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the defects in the oral colloquy ( see Davis , 188 AD3d at 1732 ).

2024Supreme Court's oral colloquy mischaracterized the waiver as an absolute bar to the taking of an appeal ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Davis , 188 AD3d 1731, 1731 [4th Dept 2020], lv denied 37 NY3d 991 [2021]) and, although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the defects in the oral colloquy ( see Davis , 188 AD3d at 1732 ).

2024We agree with defendant, and the People correctly concede, that her waiver of the right to appeal is invalid, inasmuch as Supreme Court's oral colloquy mischaracterized the waiver as an absolute bar to the taking of an appeal ( see People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Cole , 181 AD3d 1329, 1330 [4th Dept 2020]; People v Dozier , 179 AD3d 1447, 1447 [4th Dept 2020], lv denied 35 NY3d 941 [2020]).

2022The People correctly concede that the waiver of the right to appeal is invalid because County Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal . . . , and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Shanks , 37 NY

2026Although County Court's oral colloquy remedied the written waiver's mischaracterization of the waiver as an absolute bar to the taking of an appeal, the court's verbal statements did nothing to counter the other inaccuracies set forth in the written appeal waiver, including the purported waiver of all state and federal postconviction challenges ( see People v Mason , 236 AD3d 1354 , 1355 [4th Dept 2025], lv denied 43 NY3d 1010 [2025]; see also Nesmith , 235 AD3d at 1240; People v Hughes , 199 AD3d 1332, 1333 [4th Dept 2021]).

2025Although the court's oral colloquy remedied the written waiver's mischaracterization of the waiver as an absolute bar to the taking of an appeal, the court's verbal statements did nothing to counter the other inaccuracies set forth in the written appeal waiver, including the purported waiver of all state and federal postconviction challenges ( see People v Mason , 236 AD3d 1354 , 1355 [4th Dept 2025], lv denied 43 NY3d 1010 [2025]; see also Nesmith , 235 AD3d at 1240; People v [*2]Hughes , 199 AD3d 1332, 1333 [4th Dept 2021]).

2025Preliminarily, as the People correctly concede, defendant's waiver of the right to appeal is invalid because Supreme Court's colloquy and the written waiver "used overbroad language that mischaracterized the waiver as an absolute bar to the taking of an appeal" ( People v Terry , 217 AD3d 1582, 1582 [4th Dept 2023], lv denied 40 NY3d 1041 [2023] [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]).

2025Preliminarily, as the People correctly concede, defendant's waiver of the right to appeal is invalid because Supreme Court's colloquy and the written waiver "used overbroad language that mischaracterized the waiver as an absolute bar to the taking of an appeal" ( People v Terry , 217 AD3d 1582, 1582 [4th Dept 2023], lv denied 40 NY3d 1041 [2023] [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545, 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2024The oral colloquy improperly characterized the waiver as an absolute bar "to all postconviction relief separate from the direct appeal" ( People v McMillian , 185 AD3d 1420, 1421 [4th Dept 2020], lv denied 35 NY3d 1096 [2020] [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545 , 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2021Supreme Court's oral waiver colloquy and the written waiver signed by defendant together "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues" ( People v Stenson , 179 AD3d 1449, 1449 [4th Dept 2020], lv denied 35 NY3d 974 [2020]; see People v Thoma

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2024Contrary to defendant's further contention, the court properly refused to suppress his statements to the police inasmuch as defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v Caruso , 34 AD3d 860 , 863 [3d Dept 2006], lv denied 8 NY3d 879 [2007]; see People v Flowers , 122 AD3d 1396 , 1397 [4th Dept 2014], lv denied 24 NY3d 1219 [2015]) and thus did not make an " 'unequivocal and unqualified' " assertion of his right to remain silent ( People v Zacher , 97 AD3d 1101 , 1101 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; see People v Young , 153 AD

2023As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as "County Court mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Hussein , 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Somers , 186 AD3d 1111, 1112 [4th Dept 2020], lv denied 36 NY3d 976 [2020]; see also People v Thomas , 34 NY3d 545 , 56

2021We therefore cannot conclude that the waiver of appeal was knowing or voluntary ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Somers , 186 AD3d 1111, 1112 [4th Dept 2020], lv denied 36 NY3d 976 [2020]).

2023As defendant contends, his waiver of the right to appeal is invalid because Supreme Court's oral colloquy "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Marshall , 214 AD3d 1360, 1361 [4th Dept 2023] [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]).

2023As defendant contends, his waiver of the right to appeal is invalid because Supreme Court's oral colloquy "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v Marshall , 214 AD3d 1360, 1361 [4th Dept 2023] [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]).

2023Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v T

2023Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v T

2021Further, although the record reflects that defendant signed a written waiver at some point, we may not "consider whether that document corrected any defects in the court's oral colloquy because '[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it' " ( People v DeMarco , 191 AD3d 1428, 1428 [4th Dept 2021], lv denied 36 NY3d 1119 [2021]; see generally People v Bradshaw , 18 NY3d 257, 262 [2011]).

2020Furthermore, the record fails to establish that defendant "read and understood the contents of the written waiver that he executed during the proceeding" (People v Miller, 161 AD3d 1579 , 1579 [4th Dept 2018], lv denied 31 NY3d 1119 [2018]; see generally People v Bradshaw, 18 NY3d 257, 265 [2011]).

2024County Court's "oral waiver colloquy and the written waiver signed by defendant together mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues" ( People v Porchea , 204 AD3d 1444 , 1444 [4th Dept 2022], lv denied 38 NY3d 1073 [2022] [internal quotatio

2023County Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Th

2023The court also "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( Murray , 197 AD3d at 1017 [internal quotation marks omitted]; see People v Thomas , 34 NY3d 545 , 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; Jones , 211 AD3d at 1490).

2023The court also " 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues' " ( Murray , 197 AD3d at 1017 ; see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; Jones , 211 AD3d at 1490; Rodriguez , 199 AD3d at 1458 ).

2025Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " ( People v Johnson , 192 AD3d 1494 , 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v T

2025Defendant's contention that he was denied effective assistance of counsel because defense counsel did not advise him that he was ineligible for participation in the judicial diversion program relies on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Chavis , 218 AD3d 1368, 1370 [4th Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Vail , 174 AD3d 1365, 1366 [4th Dept 2019]).

2025Defendant's contention that he was denied effective assistance of counsel because defense counsel did not advise him that he was ineligible for participation in the judicial diversion program relies on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 ( see People v Chavis , 218 AD3d 1368, 1370 [4th Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Vail , 174 AD3d 1365, 1366 [4th Dept 2019]).

2025We therefore conclude that the waiver of the right to appeal was not knowingly and voluntarily made ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; see generally People v Lopez , 6 NY3d 248, 256 [2006]).

2025We therefore conclude that the waiver of the right to appeal was not knowingly and voluntarily made ( see People v Thomas , 34 NY3d 545 , 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see generally People v Lopez , 6 NY3d 248, 256 [2006]).

2024Denis , 207 AD3d 1084 , 1084 [4th Dept 2022]), and the oral colloquy did not cure that defect ( see Thomas , 34 NY3d at 566; People v Fernandez , 218 AD3d 1257, 1258 [4th Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Rumph , 207 AD3d 1209 , 1210 [4th Dept 2022], lv denied 39 NY3d 1075 [2023]).

2024We note that, although the written waiver form executed by defendant incorrectly portrays the waiver as an absolute bar to the taking of an appeal ( see generally People v Thomas , 34 NY3d 545 , 564-567 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]), the "oral colloquy, which followed the appropriate model colloquy, cured that defect" ( People v Clark , 221 AD3d 1550 , 1551 [4th Dept 2023]; see People v Yeara , — AD3d &mdash, &mdash, 2024 NY Slip Op 02625, *1 [4th Dept 2024]).