People v. Moncrieft

168 A.D.3d 982

92 N.Y.S.3d 335

The PEOPLE, etc., Respondent,

v.Gabriel MONCRIEFT, Appellant.

2017–00346

Ind. No. 5845/15

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

Submitted—September 26, 2018

January 23, 2019

Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.

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

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered November 28, 2016, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, the order of protection issued at the time of sentencing is vacated; and it is further,

ORDERED that the judgment is affirmed.

The defendant contends that his sentence of five years' imprisonment plus five years of postrelease supervision on his conviction of criminal possession of a weapon in the second degree was excessive. The People argue that this contention is precluded by the defendant's waiver of his right to appeal.

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. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). 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" ( id. 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 is 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 it" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

As this Court recently articulated, " ‘a thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right’ " ( People v. Batista, 167 A.D.3d 69, 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ). A defendant should also " ‘receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant's conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues ... [and] that appellate counsel will be appointed in the event that he or she were indigent’ " ( People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d 843, 843–844, 81 N.Y.S.3d 167 ). Finally, " ‘trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final’ " ( People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d at 843–844, 81 N.Y.S.3d 167 ). As we pointed out in Batista, the Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System's website, include a model colloquy for the waiver of the right to appeal (see People v. Batista, 167 A.D.3d at 76–77, 86 N.Y.S.3d 492 ). While the use of the model colloquy is not mandatory, its use may nevertheless "substantially reduce the difficulties" ( People v. Batista, 167 A.D.3d at 83, 86 N.Y.S.3d 492 [Scheinkman, P.J., concurring] ), provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Etienne, 152 A.D.3d 790, 790, 59 N.Y.S.3d 427 ; People v. Gonzalez, 150 A.D.3d 1024, 1025, 52 N.Y.S.3d 229 ; People v. De La Rosa, 148 A.D.3d 927, 927, 48 N.Y.S.3d 606 ; People v. Cuevas–Alcantara, 136 A.D.3d 650, 650, 23 N.Y.S.3d 902 ). The Supreme Court did not provide the defendant with an adequate explanation of the nature of the right to appeal or the consequences of waiving that right (cf. People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). The court's explanation was little more than a tautology: "[Y]ou have given up your right to appeal. Which means there will be no appeal with regards to anything in your case, and the only exception to that would be an illegal sentence or some constitutional issue. But basically you have given up your right to appeal. Do you understand?" (see People v. Colon, 153 A.D.3d 550, 550, 56 N.Y.S.3d 884 ; People v. Kupershmidt, 152 A.D.3d 797, 798, 59 N.Y.S.3d 139 ). Furthermore, the court's statements at the plea allocution suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Alston, 163 A.D.3d at 844, 81 N.Y.S.3d 167 ; People v. Santeramo, 153 A.D.3d 1286, 1286, 61 N.Y.S.3d 295 ; People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372 ; People v. Pelaez, 100 A.D.3d 803, 803, 954 N.Y.S.2d 554 ).

Although the record on appeal reflects that the defendant signed a written appeal waiver form, a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" ( People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Cuevas–Alcantara, 136 A.D.3d at 650, 23 N.Y.S.3d 902 ; People v. Brown, 122 A.D.3d at 138–139, 992 N.Y.S.2d 297 ; People v. Keiser, 100 A.D.3d 927, 928, 954 N.Y.S.2d 184 ). The transcript of the plea proceedings shows that the Supreme Court did not ascertain on the record whether the defendant had read the written waiver or discussed it with defense counsel, or whether he was even aware of its contents (see People v. Alston, 163 A.D.3d at 844, 81 N.Y.S.3d 167 ; People v. Santeramo, 153 A.D.3d at 1286, 61 N.Y.S.3d 295 ; People v. Black, 144 A.D.3d 935, 936, 41 N.Y.S.3d 126 ; People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627 ). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; see generally People v. Bradshaw, 18 N.Y.3d at 264–267, 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 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Since the defendant did not validly waive his right to appeal, this Court is not precluded from considering the merits of his contention that his sentence was excessive. Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

The defendant also contends that the Supreme Court improperly imposed an order of protection at the time of sentencing without stating the reasons for the imposition of the order and without setting an expiration date for it. We note that this contention would survive even a valid waiver of the right to appeal (see People v. Ramos, 164 A.D.3d 922, 82 N.Y.S.3d 103 ; People v. Kennedy, 151 A.D.3d 1079, 1079, 54 N.Y.S.3d 596 ; People v. Bernardini, 142 A.D.3d 671, 671, 36 N.Y.S.3d 827 ).

A court is authorized to issue an order of protection for the benefit of victims and witnesses "[u]pon sentencing on a conviction for any offense" ( CPL 530.13[4] ; see People v. Nieves, 2 N.Y.3d 310, 315, 778 N.Y.S.2d 751, 811 N.E.2d 13 ). "[A]n order of protection issued incident to...