People v. Momoh

192 A.D.3d 915

140 N.Y.S.3d 778 (Mem)

The PEOPLE, etc., respondent,

v.Michel MOMOH, appellant.

2018–12551

S.C.I. No. 17-00240

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

Submitted—January 5, 2021

March 17, 2021

Salvatore C. Adamo, New York, NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, N.Y. (Jacob B. Sher and Carrie A. Ciganek of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered September 26, 2018, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of his right to appeal is invalid. 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 248, 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, 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. Moncrieft, 168 A.D.3d 982, 983, 92 N.Y.S.3d 335 ; 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 ).

Here, the transcript of the plea proceeding reveals that the County Court failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right (see People v. Israel, 172 A.D.3d 1405, 1405, 99 N.Y.S.3d 634 ; People v. Moncrieft, 168 A.D.3d at 984, 92 N.Y.S.3d 335 ; People v. Batista, 167 A.D.3d 69, 76, 86 N.Y.S.3d 492 ; People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ). The court's colloquy on this issue "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 545, 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, 659, 125 N.Y.S.3d 149 ). Contrary to the People's contention, this improper description of the scope of the appellate rights relinquished by the waiver was not cured by the standard written appeal waiver form, which also improperly indicated that the defendant was waiving "any and all" appellate rights and which otherwise failed to inform the defendant that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211 ; People v. Eduardo S., 186 A.D.3d 1265, 1267–1268, 129 N.Y.S.3d 483 ; People v. Howard, 183 A.D.3d at 640, 121 N.Y.S.3d 622 ). As the Court of Appeals has recently reiterated, "[t]he improper description of the scope of the appellate rights relinquished by the waiver is refuted by ... precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues, including 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 at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Leiva, 184 A.D.3d 731, 124 N.Y.S.3d 207 ; People v. Christopher B., 184 A.D.3d at 659, 125 N.Y.S.3d 149 ). On this record, we cannot conclude that the defendant understood the nature of the appellate rights that he was waiving (see People v. Thomas, 34 N.Y.3d at 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 at 659, 125 N.Y.S.3d 149 ). Inasmuch as the record does not establish that the waiver limiting the scope of appeal was knowingly or voluntarily made, it cannot be enforced (see People v. Thomas, 34 N.Y.3d at 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 ).

Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

The defendant's challenge to the procedure by which he was sentenced as a second felony offender (see CPL 400.21 ; People v. Quinones, 162 A.D.3d 1402, 1402–1403, 79 N.Y.S.3d 760 ) is unpreserved for appellate review (see People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 ; People v. Oliver, 63 N.Y.2d 973, 974–975, 483 N.Y.S.2d 992, 473 N.E.2d 242 ; People v. Jackson, 87 A.D.3d 552, 553–554, 928 N.Y.S.2d 58 ; cf. People v. Samms, 95 N.Y.2d 52, 57–58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ), and we decline to reach it in the exercise of our interest of justice jurisdiction (see e.g. People v. Self, 186 A.D.2d 600, 588 N.Y.S.2d 808 ). Under these circumstances, "[a] CPL 440.20 motion is the proper vehicle for raising [such] a challenge to a sentence" ( People v. Jurgins, 26 N.Y.3d 607, 612–613, 26 N.Y.S.3d 495, 46 N.E.3d 1048 ; see CPL 440.20[1] ).

The defendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457...