People v. Dilworth

189 A.D.3d 636

137 N.Y.S.3d 43

The PEOPLE of the State of New York, Respondent,

v.Jamal DILWORTH, Defendant–Appellant.

12063

Ind. No. 106/17

Case No. 2018-03781

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

ENTERED: December 22, 2020

Robert S. Dean, Center for Appellate Litigation, New York (Alma D. Gonzalez of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen and Rebecca Hausner of counsel), for respondent.

Renwick, J.P., Gesmer, Gonza´lez, Scarpulla, JJ.

Judgment, Supreme Court, New York County (Gregory Carro, J. at suppression hearing; Ellen N. Biben, J. at plea; Ann E. Scherzer, J. at sentencing), rendered March 28, 2017, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal, which forecloses review of his suppression claims. The court's oral colloquy avoided conflating the right to appeal with the rights normally forfeited upon a guilty plea, and it exceeded the minimum standards for such a colloquy. The record of the plea proceeding, taken together with a detailed written waiver that defendant reviewed with his counsel, and that fully explained the appellate rights defendant was giving up, established that the waiver was knowing, intelligent and voluntary (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ).

Although the court initiated the plea agreement, and imposed the condition of an appeal waiver sua sponte, we do not find that the court thereby "abandoned the role of a neutral arbiter and assumed the function of an interested party" ( People v. Towns, 33 N.Y.3d 326, 328, 102 N.Y.S.3d 151, 125 N.E.3d 816 [2019] ). This case bears little resemblance to Towns , where the judge, acting entirely on his own, obtained a witness for the prosecution by negotiating a cooperation agreement with a codefendant.

Defendant also cites to People v. Sutton (184 A.D.3d 236, 241, 125 N.Y.S.3d 739 [2d Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 385, 152 N.E.3d 1186 [2020] ), in which our colleagues in the Second Department held that a court-initiated appeal waiver was invalid where the court had accepted defendants' plea and made its sentence promise before requiring an appeal waiver and without setting forth on the record a reason for requiring the waiver. This Court has not adopted the ...