People v. Rivera

193 A.D.3d 766

141 N.Y.S.3d 861 (Mem)

The PEOPLE, etc., respondent,

v.Franchesca RIVERA, appellant.

2017–05008

Ind. No. 221/16

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

Submitted—March 16, 2021

April 7, 2021

Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Stephen J. Rooney, J.), rendered April 6, 2017, convicting her of attempted robbery in the first degree, upon her plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty to attempted robbery in the first degree in full satisfaction of an indictment charging her with participating in four separate robberies. When allocuting the defendant as to a purported waiver of the right to appeal, the Supreme Court stated, in relevant part: "If you cannot afford an appellate lawyer, one would be assigned to represent you. But you're being asked as a condition of the plea agreement to waive that right." The court further stated: "By agreeing to waive the right to appeal, your convictions and sentences will not receive any further review and shall be final."

The defendant's purported waiver of her right to appeal was invalid, as the Supreme Court mischaracterized the nature of the waiver by stating, inter alia, that the defendant was giving up her right to any further review of her case and her right to have an attorney assigned on appeal (see People v. Thomas, 34 N.Y.3d 545, 563–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Walker, 189 A.D.3d 1470, 1470, 134 N.Y.S.3d 726 ). Where, as here, "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 [internal quotation marks omitted]; see People v. Walker, 189 A.D.3d at 1470, 134 N.Y.S.3d 726 ).

"The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case" ( People v. McEachern, 163 A.D.3d 850, 851, 81 N.Y.S.3d 571 [...