People v. Aquino

194 A.D.3d 732

143 N.Y.S.3d 580 (Mem)

The PEOPLE, etc., respondent,

v.Melvin AQUINO, appellant.

2017–13233

S.C.I. No. 640/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 25, 2021

May 5, 2021

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

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Michael Ofori on the brief), for respondent.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered May 4, 2017, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant waived his right to be prosecuted by indictment and agreed to be prosecuted under a superior court information (hereinafter SCI) charging him with attempted robbery in the second degree. The defendant pleaded guilty to the charge in exchange for a promised sentence of 2 years' imprisonment followed by 2 years of postrelease supervision. The promised sentence was imposed.

The defendant's contention that the written waiver of indictment failed to comply with CPL 195.20, in that it does not contain the "approximate time and place" of the offenses to be charged in the SCI, is forfeited by his plea of guilty (see People v. Thomas, 34 N.Y.3d 545, 569, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Aquino, 191 A.D.3d 895, 138 N.Y.S.3d 375, 376; People v. Cruz, 186 A.D.3d 1393, 1393, 129 N.Y.S.3d 17 ; People v. King, 184 A.D.3d 909, 910, 123 N.Y.S.3d 556 ).

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Echevarria, 180 A.D.3d 703, 703, 115 N.Y.S.3d 680 ). However, a waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Here, the terse oral colloquy was insufficient to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Moncrieft, 168 A.D.3d 982, 984, 92 N.Y.S.3d 335 ). The Supreme Court improperly conflated the waiver of the right to appeal with the rights automatically forfeited by a plea of guilty (see People v. Harris, 175 A.D.3d 1555, 1556, 109 N.Y.S.3d 362 ; People v. Ortiz, 167 A.D.3d 658, 659, 86 N.Y.S.3d 914 ). As such, the record does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Harris, 175 A.D.3d at 1557, 109 N.Y.S.3d 362 ; People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ). Moreover, the court mischaracterized the scope of the appeal waiver by stating that the defendant's conviction and sentence would be final (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Simpson, 184 A.D.3d 677, 678, 123 N.Y.S.3d 846 ). Accordingly, the defendant did not validly waive the right to...