People v. Eduardo S.

186 A.D.3d 1265

129 N.Y.S.3d 483

The PEOPLE, etc., Respondent,

v.EDUARDO S. (Anonymous), Appellant.

2019–00382

Ind. No. 1393/18

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

Submitted—July 29, 2020

September 2, 2020

Paul Skip Laisure, New York, N.Y. (Paris C. DeYoung of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Eleanor Reilly on the memorandum), 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, Queens County (Lenora Gerald, J.), imposed November 28, 2018, 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 third degree. He was adjudicated a youthful offender and sentenced to a three-year period of conditional discharge.

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]; see People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ).

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 ; see People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ).

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 ).

In this case, the People's extended defense of the appeal waiver is unconvincing. As an initial matter, the appeal waiver was not mentioned by the Supreme Court prior to the defendant's plea of guilty, but only afterward. Accordingly, "the defendant received no material benefit from his appeal waiver, as the court had already accepted the defendant's plea and made its sentence promise" ( People v. Sutton, 184 A.D.3d 236, 245, 125 N.Y.S.3d 739 ). Under such circumstances and in the absence of a request by the People, "the court's insistence upon the execution of an appeal waiver was a gratuitous, after-the-fact additional demand asserted after the bargain had already been struck" ( id. at 245, 125 N.Y.S.3d 739 ). In addition, the court's colloquy on this issue, conducted after the plea had already been accepted, "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal" ( People v. Howard, 183 A.D.3d 640, 640, 121 N.Y.S.3d 622 ; see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Leiva, 184 A.D.3d 731, 124 N.Y.S.3d 207 ; People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ). Contrary to the People's contention, "these defects were not cured by the terms of the standard written appeal waiver form, which not only lacked detail and repeated many of the mischaracterizations contained in the court's colloquy, but further misstated that the defendant was giving up the right to all...