People v. Christopher B.

184 A.D.3d 657

125 N.Y.S.3d 149

The PEOPLE, etc., Respondent,

v.CHRISTOPHER B. (Anonymous), Appellant.

2017-12076

Ind. No. 1223/17

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

Submitted - January 15, 2020

June 10, 2020

Paul Skip Laisure, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas Ross, and Peter N. Pearl of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), imposed September 19, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant entered into a plea agreement pursuant to which he pleaded guilty to robbery in the first degree. He was adjudicated a youthful offender and sentenced to one year in jail.

On appeal, the defendant contends that the sentence imposed was excessive. The People argue that appellate review of the defendant's contention is precluded because he waived his right to appeal and that, in any event, the defendant's sentence was not excessive.

"In New York, a criminal defendant has the right to appeal from a judgment of conviction and sentence" ( People v. Batista, 167 A.D.3d 69, 72, 86 N.Y.S.3d 492 ; see CPL 450.10 ). However, a defendant may waive, as a condition of a plea agreement, "the right to have the appellate court review most claims of error as well as whether the sentence imposed was excessive" ( People v. Batista, 167 A.D.3d at 73, 86 N.Y.S.3d 492 ; see William C. Donnino, 2012 Supp Practice Commentaries, McKinney's Cons Laws of N.Y., CPL 450.10 ). Although such a waiver is often characterized as "a waiver of appeal, which suggests an absolute relinquishment of all appellate opportunity, [it] is in reality a limitation on the issues that may be effectively reviewed on appeal" ( People v. Batista, 167 A.D.3d at 79, 86 N.Y.S.3d 492 [Scheinkman, P.J., concurring] )

A valid waiver that broadly limits the scope of appeal will generally preclude appellate review of "any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process' " ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145, quoting People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; see People v. Batista, 167 A.D.3d at 73, 86 N.Y.S.3d 492 ). Even after executing such a waiver, however, "a defendant [still] retains the right to appellate review of ... the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court" ( People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

A waiver that limits the scope of appellate review "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Although the Court of Appeals has "repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right[s][are] known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving [those appellate rights]" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Rocchino, 153 A.D.3d 1284, 1284–1285, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

The Court of Appeals has stated that "when a trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ an appellate ‘court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights' " ( People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970, quoting People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). However, even if a trial court mischaracterizes the nature or effect of a waiver that limits the scope of appellate review, the waiver may be "enforceable so long as the totality of the circumstances reveals that the defendant understood the nature of the appellate rights being waived" ( People v. Thomas, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). "[I]n determining whether the record demonstrates that a defendant understood [the] waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgments of understanding, a written appeal waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system" ( id. at 560,, 122 N.Y.S.3d 226 144 N.E.3d 970 ; see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Here, the Supreme Court properly explained to the defendant the nature of the right to appeal and distinguished that right from the rights automatically forfeited upon pleading guilty. However, the court mischaracterized the effect of the waiver on the defendant's right to appeal. In this regard, the court, after describing the function of an appellate court, concluded its explanation of the waiver by stating: "What all this means, though, is that this plea and the sentence I am going to impose are final and that higher court will not have a chance to review it."

As the Court of Appeals has recently stated: "The improper description of the scope of the appellate rights relinquished by the waiver is refuted by ... precedent, whereby a defendant...