People v. Streater

207 A.D.3d 952

172 N.Y.S.3d 238

The PEOPLE of the State of New York, Respondent,

v.James STREATER, Appellant.

112099

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

Calendar Date: May 26, 2022

Decided and Entered: July 21, 2022

Clea Weiss, Ithaca, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal

from a judgment of the County Court of Ulster County (Williams, J.), rendered July 10, 2019, convicting defendant upon his plea of guilty of the crimes of aggravated family offense and criminal contempt in the first degree.

In January 2019, defendant was charged with six counts of aggravated family offense and two counts of criminal contempt in the first degree based upon allegations that he had continued contact with an individual for whom an order of protection had been issued. Subsequently, defendant pleaded guilty to one count of aggravated family offense and one count of criminal contempt in the first degree and waived his right to appeal as a condition of this guilty plea. County Court sentenced him to consecutive prison terms of 2 to 4 years on each count, and certain orders of protection were issued. Defendant appeals.

Initially, we agree with defendant that his waiver of the right to appeal is invalid. "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily. And though a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citations omitted]). When the trial court has, through written waiver and oral colloquy, "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 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] [internal quotation marks and citation omitted]).

During the plea colloquy, County Court described to defendant in detail his right to appeal to a higher court, including the attendant right to assigned appellate counsel. The court then made clear that, in order to receive the benefit of the plea bargain offered by the People and the sentence offered by the court, defendant would "have to give up that separate and distinct right to appeal." It was not conveyed to defendant that some appellate review would survive this waiver. Defendant then executed a written document pertaining to his right to appeal, among other rights. This written waiver similarly described that, following a guilty plea, defendant would typically retain "the right to appeal to a higher court to review the fairness of that conviction and any sentence imposed in the case." The waiver explained that "this right to appeal includes the right to the assignment of an attorney for that purpose" if a defendant cannot afford to hire counsel. It went on to state "that a defendant can be asked to waive – that is, give up – this right to appeal in return for a promised sentence or range of sentences from the court," and it affirmed defendant's understanding that his waiver of appeal would "apply to all legal issues that can be waived under the law, including any issues regarding the effectiveness of [his] attorney prior to [his] guilty plea in this case." Notably, the final sentence before the signature page states as follows: "It is [defendant's] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case."

Thus, both the oral colloquy and the written waiver included overbroad characterizations of the waiver of the right to appeal, without regard for defendant's well-settled retention of "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 ). In particular, the final sentence of the written waiver "suggest[s] an absolute bar to taking a direct appeal encompassing even nonwaivable issues, and [is] overly broad by mischaracterizing the rights waived as encompassing all state and federal appeals and postconviction relief" ( People v. Gamble, 190 A.D.3d 1022, 1024, 138 N.Y.S.3d 729 [2021], lvs denied 36 N.Y.3d 1095, 1097, 1098, 144 N.Y.S.3d 134, 154, 155, 156, 167 N.E.3d 1269, 1289, 1290, 1291 [2021]). Notwithstanding our prior decisions indicating that an overbroad or misleading characterization of an appeal waiver may be remedied by qualifying language limiting the waiver to "all legal issues that can be waived under the law," as well as assurances that a defendant has discussed the waiver with counsel (see e.g. People v. Soto, 199 A.D.3d 1128, 1129, 156 N.Y.S.3d 571 [2021] ; People v. McCoy, 198 A.D.3d 1021, 1022, 152 N.Y.S.3d 635 [2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ; People v. Thomas, 190 A.D.3d 1157, 1158–1159, 139 N.Y.S.3d 458 [2021] ), the "totality of the circumstances" here fails to confirm that 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 ).¹

As the waiver of appeal is invalid, defendan...