| People v Romano |
| 2007 NY Slip Op 08142 [45 AD3d 910] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jon W.Romano, Appellant. |
—[*1] Patricia A. DeAngelis, District Attorney, Troy (Joseph M. Ahearn of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), entered December 21, 2004, convicting defendant upon his plea of guilty of the crimes ofattempted murder in the second degree (three counts) and reckless endangerment in the firstdegree (six counts).
On this appeal from a conviction by guilty plea, defendant seeks to preserve that portion ofhis plea agreement which favors him while at the same time disavowing that portion with whichhe is dissatisfied, namely the agreed-upon length of his sentence. In short, he seeks a reduction ofhis negotiated sentence but does not request vacatur of the plea and remittal for a trial. Becausedefendant validly waived his right to appeal in connection with the plea, however, appellatereview of his sentence has been foreclosed, as explained below.
In February 2004, defendant, who was 16 years old, wrote a suicide note and then took aloaded shotgun into the local high school that he had previously attended. After entering abathroom and waiting for approximately 15 minutes, defendant used his cell phone to send textmessages to his friends informing them that he was in the school with a gun and warning them toleave. A few minutes later, while exiting the bathroom, defendant encountered Eric Farrell, astudent. Defendant pointed the shotgun at Farrell, who ran into an open classroom. At that [*2]point, defendant saw two other students, Jeffrey Kinary andKristopher Steponik, in the hall outside the bathroom. Kinary made eye contact with defendant,who pointed the shotgun directly at him and pulled the trigger. Kinary, who dropped to theground as he saw a flash of fire from the barrel of the gun, was not hit. After Kinary and Steponikheard a second shot being chambered and attempted to run and crawl away, defendant fired atthem again and the wadding of the shotgun round struck Steponik in the leg. Defendant thenentered a classroom with the gun but was pulled back out by Assistant Principal John Sawchuck,who attempted to wrestle the shotgun away from him. As a teacher, Michael Bennett, approachedto assist Sawchuck, defendant swung around and the gun went off, striking Bennett in the leg. AtSawchuck's urging, defendant then agreed to give up the shotgun. Defendant was arrested andtransported to the Rensselaer County Jail, where he was observed that night laughing attelevision news of the incident.
Defendant was subsequently charged in an indictment with three counts of attempted murderin the second degree, one count of assault in the second degree, and 82 counts of recklessendangerment in the first degree. In satisfaction of the indictment, he pleaded guilty to threecounts of attempted murder in the second degree and six counts of reckless endangerment in thefirst degree. As part of the plea bargain, defendant agreed to waive his right to appeal. The termsof the plea agreement specifically provided that defendant would receive an aggregate prisonterm of 20 years, to be followed by a five-year period of postrelease supervision. AlthoughCounty Court imposed the agreed-upon sentence, defendant now appeals, arguing that his appealwaiver was not valid and that his sentence should be reduced in the interest of justice.[FN1]
It is well settled that absent a valid appeal waiver, "[t]his court is vested with discretion toreview the sentence imposed upon a defendant, even where the sentence was given as part of anegotiated plea," and to reduce the sentence if warranted in the interest of justice (People vMackey, 136 AD2d 780, 780 [1988], lv denied 71 NY2d 899 [1988]; see Peoplev Thompson, 60 NY2d 513, 519-520 [1983]; People v Gibbs, 280 AD2d 698, 699[2001], lv denied 96 NY2d 829 [2001]; see also People v Smith, 32 AD3d 553, 554 [2006]). Nevertheless,"[w]hile the Appellate Division may be divested of its unique interest-of-justice jurisdiction onlyby constitutional amendment (see People v Pollenz, 67 NY2d 264, 267-268 [1986]), adefendant is free to relinquish the right to invoke that authority and indeed does so by validlywaiving the right to appeal" (People vLopez, 6 NY3d 248, 255 [2006]; see People v Seaberg, 74 NY2d 1, 8-10[1989]). A valid appeal waiver will not foreclose review of issues that go to the integrity of theprocess, such as challenges to the legality of a sentence, the voluntariness of the plea, or adefendant's competency—challenges that are not advanced herein; it will, however,foreclose an argument that a legal sentence is excessive (see People v Lopez, 6 NY3d at255-256; People v [*3]Seaberg, 74 NY2d at 9-10). As theCourt of Appeals has explained, to the extent that "[t]he right to appeal a validly imposedsentence . . . implicate[s] society's interest in the integrity of the criminal process,. . . that interest is protected by the procedural and substantive requirementsimposed on the Trial Judge before the defendant may be sentenced" (People v Seaberg,74 NY2d at 9).
The Court of Appeals has also long rejected the argument that appeal waivers interfere withthe exercise of interest of justice jurisdiction by the Appellate Division. Specifically, "[a]defendant's decision to waive appeal does not interfere with the court's jurisdiction. . . ; it is simply a decision not to invoke the court's review power. By pleadingguilty[,] a defendant forecloses the appellate court from reviewing the merits of the pleabargain in the interest of justice and there is nothing inherently wrong in a defendant similarlyelecting to foreclose review of a negotiated sentence" (id. at 9-10 [emphasisadded]). That is, "a bargained-for waiver of the right to appeal . . . does not operateto deprive the appellate court of its jurisdiction of the appeal. Instead, it merely foreclosesappellate review of all claims that might be raised on appeal, except, of course, thosecategories of claims that survive such waivers under our case law" (People v Callahan, 80NY2d 273, 285 [1992] [emphasis added]).[FN2][*4]
Indeed, upholding a defendant's election to foreclosediscretionary review of a negotiated sentence serves an important public interest concern. "Theimportant goals of fairness and finality in criminal matters are accomplished only insofar as theparties are confident that the carefully orchestrated bargain of an agreed-upon sentence will notbe disturbed as a discretionary matter" (People v Lopez, 6 NY3d at 256 [internalquotation marks and citations omitted]; see People v Seaberg, 74 NY2d at 10). Thus, "[a]defendant may not subsequently eviscerate that bargain by asking an appellate court to reduce thesentence in the interest of justice—realistically an issue that as a practical matter isbrought to an appellate court's attention only when raised by defendants" (People vLopez, 6 NY3d at 255-256 [emphasis added]). In our view, that bargain is similarlyeviscerated, contrary to the well-established public policy of this state, when an appellate courtpurports to honor a defendant's waiver by rejecting a challenge to the excessiveness of a sentenceas barred by an appeal waiver, but then reduces the sentence—just asrequested—and deems the reduction to be "sua sponte."[FN3]
Turning to the waiver at issue here, after "considering all the relevant facts and circumstancessurrounding the waiver, including the nature and terms of the agreement and the age, experienceand background of the accused" (People v Seaberg, 74 NY2d at 11), we conclude thatdefendant knowingly, intelligently and voluntarily waived his right to appeal. A review of theplea colloquy reveals that County Court initially explained the terms of this particular plea, [*5]including that defendant was waiving his right to appeal, andelicited the agreement of both defendant and his counsel that they understood the terms of theplea to be as the court had recited. Contrary to defendant's argument, the court thereafter"describ[ed] the nature of the right being waived without lumping that right into the panoply oftrial rights automatically forfeited upon pleading guilty and elicit[ed an] agreement[ ] ofunderstanding from . . . defendant" (People v Lopez, 6 NY3d at 257).
Even assuming that County Court's discussion was inadequate, however, defendant signed awritten appeal waiver in open court at sentencing, acknowledging that he had consulted withcounsel regarding the waiver and that counsel had advised him of all the legal ramifications ofthe waiver (see People v Ramos, 7NY3d 737, 738 [2006]). Although defendant asserts that County Court should have elicitedhis express acknowledgment on the record that he had, in fact, signed the waiver and done sowith full understanding and awareness of its contents, such an inquiry was not required in light ofthe execution of the waiver in open court—which would have necessarilyfamiliarized the court with the circumstances surrounding the waiver's execution (cf. People vCallahan, 80 NY2d at 283). Furthermore, defense counsel, who signed the waiver as awitness and continues to represent defendant in connection with this appeal, does not dispute theaccuracy of the written waiver's statement that it was made in open court and, despite thedissent's misgivings about counsel's ability to explain the right, defendant does not claim thatcounsel's advice regarding his right to appeal was in any way deficient or inadequate (see People v Fludd, 33 AD3d1124, 1125 [2006]; People vGreene, 7 AD3d 923, 923 [2004], lv denied 3 NY3d 659 [2004]; cf. People v Edwards, 37 AD3d871, 872 [2007], lv denied 8 NY3d 945 [2007]). Given the undisputed facts that thewritten waiver was executed in open court and there was a record discussion, albeit brief, of thewaiver with defendant by the court, it cannot be said, as in People v Callahan (80 NY2dat 283)—a case in which there was no indication that the court was even aware of thewaiver—that we have been presented with a "silent record" preventing any determinationof the waiver's validity.
Finally, while defendant argues that his waiver should be deemed involuntary due to hisyouth, history of mental illness and use of the medication Paxil—which he claims causesimpaired judgment and serious emotional side effects—at the time of the plea,[FN4]we note that counsel did not raise any concerns regarding defendant's competency at that time ormove to vacate the plea thereafter on the ground that defendant was not capable of understandingthe proceedings (see generally People vBagley, 34 AD3d 992, 993 [2006], lv denied 8 NY3d 878[*6][2007]; People v D'Adamo, 281 AD2d 751, 753 [2001]).Nor did defendant's responses to County Court's inquiries regarding the impact of the Paxilmedication on his thinking and ability to understand the proceedings give any indication that hewas "uninformed, confused or incompetent" during the plea colloquy (People vAlexander, 97 NY2d 482, 486 [2002]; see People v Williams, 35 AD3d 971, 972 [2006], lv denied8 NY3d 928 [2007]). More fundamentally, defendant's argument that his mental illness,medication and youth rendered him incapable of understanding the appeal waiver would applywith equal force to the guilty plea in its entirety, yet he provides us with no explanation for hisdecision to challenge just one term of the plea bargain in this regard—the appealwaiver—as opposed to the voluntariness of the plea as a whole. Given the circumstancesunder which this particular plea and waiver were entered, it is both disingenuous and legallyinconsistent to argue that defendant's youth, inexperience and psychological condition were suchthat he was unable to understand that he was waiving his right to appeal without also arguing thatthese same facts precluded a voluntary plea in the first instance.
In sum, we conclude that defendant validly waived his right to appeal and, thus, his claimsregarding the severity of his sentence are precluded (see People v Ramos, 7 NY3d at 738;People v Lopez, 6 NY3d at 256-257; People v Collier, 35 AD3d 1037, 1037 [2006]; People v Nason, 31 AD3d 818,819 [2006], lv denied 7 NY3d 869 [2006]; cf. People v Cain, 29 AD3d 1157, 1157 [2006]).
Crew III, Peters and Carpinello, JJ., concur.
Cardona, P.J. (dissenting). Respectfully, I dissent. The Court of Appeals has instructed thatan appeal waiver, "to be enforceable, must not only be voluntary but also knowing andintelligent" (People v Seaberg, 74 NY2d 1, 11 [1989]; see People v Lopez, 6 NY3d 248,256 [2006]). Specifically, "the defendant [must] comprehend[ ] the nature of the waiver ofappellate rights" (People v Lopez, 6 NY3d at 256; see People v Ramos, 7 NY3d 737, 738 [2006]), and, notably, "[t]herecord must establish that the defendant understood that the right to appeal is separateand distinct from those rights automatically forfeited upon a plea of guilty" (People vLopez, 6 NY3d at 256 [emphasis added]; see People v Guthinger, 36 AD3d 1075, 1076 [2007], lvdenied 8 NY3d 923 [2007]).
In my opinion, based upon this record, I cannot agree that the requirements set forthabove have been met in order to conclude that the waiver herein is enforceable. County Court'sdiscussion with defendant concerning his waiver of appeal consisted only of one questioninserted in the midst of the lengthy plea colloquy:
"the court: Do you waive your right to appeal this process which means it is going to endright here with this court; you can't go to a higher court?
"the defendant: Yes."
That question was the 17th of 20 "yes or no" questions posed by the court in seriatum,several of which asked defendant whether he understood that he was waiving those particularrights forfeited by a guilty plea, such as the right not to incriminate himself and the right to a jurytrial. Significantly, the record does not contain an adequate explanation to defendant ofthe nature of [*7]the waiver of his appellate rights nor does itindicate any attempt to ensure that defendant understood he was relinquishing a "valued right"that was "separate and distinct" from those rights automatically extinguished by virtue of hisguilty plea (People v Lopez, 6 NY3d at 256, 257; see People v Edwards, 37 AD3d 871, 872 [2007], lv denied8 NY3d 945 [2007]; People v Guthinger, 36 AD3d at 1076; People v Cain, 29 AD3d 1157[2006]; People v Popson, 28 AD3d870, 871 [2006]).[FN1]Under these circumstances, in this particular context, the single question to defendant during hisplea allocution and his one-word response are insufficient to constitute an effective waiver.
Nor is this ineffective oral waiver saved by the written waiver form executed by defendantone month later, which stated as follows: "I, Jon W. Romano, the above named defendant, waivemy right to appeal from my conviction and sentence in the above-entitled Indictment as part andparcel of my plea bargain agreement with the Office of the Rensselaer County District Attorney.This waiver is made in open court after consulting with my attorney who has informed me of allthe legal ramifications of this waiver of my right to appeal." Notably, although the written waiverstates that it was executed in open court, the record does not include any inquiry by County Courtto verify that defendant reviewed the waiver with his attorney and fully understood itsconsequences, nor does it demonstrate "that the court was familiar with the circumstancessurrounding the document's execution" (People v Callahan, 80 NY2d 273, 283 [1992]; see People v Morgan, 39 AD3d889 [2007], lv denied 9 NY3d 848 [2007]). Importantly, defendant's understanding"cannot be inferred from a silent record" (People v Callahan, 80 NY2d at 283),particularly where, as here, the document specifies that defendant's waiver of his right to appealis "part and parcel of my plea bargain agreement." At best, that language is confusing and couldbe construed as "characteriz[ing] an appeal as one of the many rights automatically extinguishedupon entry of a guilty plea" (People v Lopez, 6 NY3d at 256). Absent further clarificationby the court on the record, it cannot be confirmed that defendant understood the appellate processor the significance of the distinct and valuable right he was waiving (see People v Ramos,7 NY3d at 738; People v Lopez, 6 NY3d at 256).[FN2][*8]
Additionally, and in further support of my view thatdefendant's appeal waiver is unenforceable, I note that "all the relevant facts and circumstancessurrounding the waiver, including . . . the age, experience and background of theaccused" (People v Seaberg, 74 NY2d at 11; see People v Hidalgo, 91 NY2d 733,736 [1998]; People v Callahan, 80 NY2d at 280), weigh against inferring that defendantpossessed any knowledge or understanding of his appeal rights not explicitly apparent on therecord. At the time that he purported to waive his right to appeal, defendant had just turned 17years old, very nearly the youngest age at which any defendant could be confronted with thecritical decision at issue here. He had no prior experience with the criminal justice system. And,moreover, the record undisputedly demonstrates that defendant had a documented medicalhistory of severe depression and anxiety, for which he was still under treatment at the time of hiswaiver. In this context, defendant's youth, inexperience and psychological condition do notsupport the assumption that he grasped the distinction between those rights automaticallyforfeited by his guilty plea and those rights he was asked to separately waive. I raise theseconcerns not to suggest that defendant was not capable of waiving his appeal rights, but rather tounderscore my conviction that absent an adequate record we should not infer that this defendantunderstood the consequences of his purported waiver. Finally, given the clear distinction betweenappeal waivers and guilty pleas, which was emphasized by the Court of Appeals in People vLopez (supra), I do not agree with the majority's implication that a defendant maychallenge the validity of an appeal waiver on the ground that it was not knowing and intelligentonly if he also challenges his guilty plea on the same ground. I find no support in case law forthis all-or-nothing requirement. Accordingly, under all of the circumstances enumerated herein, Iconclude that defendant's waiver of his right to appeal was ineffective and does not foreclosereview of his sentence on the ground that it is harsh and excessive.
Next, although it is my view that the appeal waiver in this case is ineffective and, thus,unenforceable, I nonetheless express my concern over language in the majority opinion that couldlead to a conclusion that a defendant's valid waiver of the right to appeal does not justrestrict that defendant's own right to request that this Court invoke its interest of justicejurisdiction to reduce a sentence (see People v Lopez, 6 NY3d at 256) but, further, leadsinexorably to a restriction of this Court's own constitutionally mandated authority to exercise thatjurisdiction in cases where we deem it appropriate despite the presence of a valid appeal waiver(see e.g. People v Coleman, 281 AD2d 653 [2001]). Significantly, the importance of ourexclusively-granted jurisdiction to reduce unjust sentences as a matter of discretion, even whenthey are otherwise lawfully imposed, is well described in decisional law (see e.g. People vLopez, 6 NY3d at 259-264 [Smith, J., concurring]) and is rooted in our Constitution (NYConst, art VI, § 4 [k]). When exercised by a majority panel of the Appellate Division, thatpower is not amenable to curtailment by the Legislature (see People v Pollenz, 67 NY2d264, 268 [1986]) or review by our state's highest court (see e.g. People v Dawn Maria C.,67 NY2d 625, 627 [1986]; People v Thompson, 60 NY2d 513, 521 [1983]). Theexistence of this jurisdiction to intervene and correct injustice when all other safeguards havefailed must contradict the suggestion that any [*9]action on thepart of a defendant, the precise individual that the power is meant to ultimately protect,can work to restrict the Appellate Division in the exercise of that authority. In other words, I donot agree that, in a situation where this Court is confronted with what is essentially an unfairsentence that was imposed despite even the best efforts of the courts, attorneys and thedefendants themselves, we would have no choice but to sit idly by while the injustice proceededunchecked.
Finally, I turn to a consideration of the severity of defendant's prison sentence—20years. In my view, under all the circumstances herein, that sentence is harsh and excessive andshould be reduced (see CPL 470.15 [2] [c]). In arriving at that conclusion, I certainly donot diminish the gravity of the harm that defendant actually caused to the innocent victims by hisactions. Indeed, we have all witnessed the devastating results of gun violence in schools; it isunacceptable. Nevertheless, justice and the law demand that each case be evaluated on its ownfacts. As previously mentioned, defendant has a documented history of mental illnesses. Theseillnesses led to his brief hospitalization in 2003, and his extensive course of treatment for theseillnesses consisted of, among other things, numerous prescription medications, including Zoloft,Ziprexa, Effexor, Celexa, Paxil and Xanax. Here, it is apparent from the information in therecord, which is largely undisputed, that defendant's suicidal thoughts and extensive mentalhealth illnesses were inadequately or improperly managed. Alan Tuckman, a psychiatrist whoevaluated defendant following the subject incident, opined that, despite the fact that defendantsuffered from a severe mental illness, he "was essentially poorly and effectively untreated in themonths prior to this incident." Tuckman went on to state that, had defendant been adequatelytreated, "it is very likely that his depression could well have been kept under control and theincident leading to his arrest would have been averted."
In light of this uncontradicted medical proof and keeping in mind defendant's youth, lack ofprior criminal history and the numerous letters of support written on his behalf (see e.g.People v Strawbridge, 299 AD2d 584, 594 [2002]; People v Coleman, 281 AD2d at654), 20 years of incarceration can only be deemed harsh and excessive (see People v Khuong Dinh Pham, 31AD3d 962 [2006]; People vWilt, 18 AD3d 971 [2005], lv denied 5 NY3d 771 [2005]; People vStrawbridge, 299 AD2d at 594). Accordingly, I would reduce the sentence to a term ofimprisonment more appropriate to the unique facts and circumstances of this case (seeCPL 470.15 [2] [c]; [6] [b]) and reach that issue based upon the invalidity of the waiver or,alternatively, in the interest of justice.
Ordered that the judgment is affirmed.
Footnote 1: Although we do not reach thequestion of whether this sentence was harsh and excessive, we note that it was significantly lessthan the 75-year maximum sentence that could have been imposed upon the attempted murderconvictions (see Penal Law § 70.02 [3])—crimes defendant continues tofreely admit to committing. It was also less than a sentence recently affirmed by this Court basedupon similar conduct and in the face of nearly identical claims (People v Bonelli, 41 AD3d 972,974 [2007]).
Footnote 2: As the quoted languageillustrates, the dissent's expressed concern over language in our decision "suggest[ing] that anyaction on the part of a defendant . . . can work to restrict the AppellateDivision in the exercise of [the] authority" to reduce unjust sentences is more properly directed atthe Court of Appeals decisions in People v Seaberg (supra) and People vCallahan (supra). While this Court had previously declined to adopt the dissent'sviews regarding a defendant's ability to foreclose our review of negotiated sentences(compare People v Maye, 143 AD2d 483, 484 [1988], lv denied 73 NY2d 788[1988], with People v Bourne, 139 AD2d 210, 214-215 [1988], lv denied 72NY2d 955 [1988]), the Court of Appeals definitively resolved the issue in People vSeaberg (74 NY2d at 9-10 [rejecting Bourne]), a case that is nearly two decades oldand that was reaffirmed just last year in People v Lopez (6 NY3d at 255-256). Of course,even if we do not agree with the rules of law set forth in the decisions of the Court of Appeals,we are bound to follow those rules (see e.g. Albany County Indus. Dev. Agency v GastingerRies Walker Architects, 144 AD2d 891, 893 [1988], appeal dismissed 73 NY2d1010 [1989], lv denied 74 NY2d 605 [1989]; Bull v Stichman, 273 App Div 311,316 [1948], affd 298 NY 516 [1948]; Scott v King, 51 App Div 619 [1900]).Thus, to the extent that any of our decisions may have failed to recognize that a valid appealwaiver "foreclose[s] review of a negotiated sentence" (People v Seaberg, 74 NY2d at 10;see e.g. People v Coleman, 281 AD2d 653 [2001]), those decisions should no longer befollowed.
Footnote 3: Such an action on our partwould, of course, also reflect a fundamental misunderstanding of the term "sua sponte," which isdefined as "[w]ithout prompting or suggestion; on its own motion" (Black's Law Dictionary 1464[8th ed 2004]). Reduction of defendant's sentence in the interest of justice, as requested, wouldnot be "without prompting or suggestion"; rather, it would be an action taken upon defendant'sappeal, not "on [our] own motion," regardless of whether we claimed to be upholding the appealwaiver or not. In any event and as explained above, the Court of Appeals has repeatedly held thatthe Appellate Division does not have the power to reduce a defendant's sentence under suchcircumstances in stating that a valid, bargained-for waiver of the right to appeal "foreclose[s]review of a negotiated sentence" (People v Seaberg, 74 NY2d at 10).
Footnote 4: Despite the extensive list ofmedications prescribed to defendant that is set forth in the dissent, we reiterate that, at the time ofthe plea, defendant was taking only the medication Paxil. Inasmuch as there is not even asuggestion in this record that the additional prescription medications that he may have taken inthe past had any impact on his ability to understand the consequences of his waiver during therelevant time period, the prior "inadequate[ ] or improper[ ] manage[ment]" of defendant'sillness perceived by the dissent is simply irrelevant to the issues before us on this appeal.
Footnote 1: I am mindful that County Courtdid not have the benefit of the Court of Appeals' decision in People v Lopez(supra) at the time this plea was allocuted. That case clarified the importance ofdistinguishing the waiver of the right to appeal as separate from the rights normally surrenderedupon a plea of guilty.
Footnote 2: Although defendant wasrepresented by a well-respected and experienced attorney, on this record, I cannot assume thatcounsel explained to defendant all that People v Lopez (supra) requires, since, asalready indicated, that case was decided well after judgment was entered in this case. Moreover,it could not be foreseen that Lopez would further establish that criminal defendants whovalidly waived their appeal rights could not affirmatively request that the Appellate Divisioninvoke its interest of justice jurisdiction to review their sentences.