| People v Pope |
| 2015 NY Slip Op 05522 [129 AD3d 1389] |
| June 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMartin O. Pope, Jr., Appellant. |
Abbie Goldbas, Utica, for appellant.
William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Madison County(McDermott, J.), rendered June 9, 2014, convicting defendant upon his plea of guilty ofthe crime of criminal contempt in the first degree.
Defendant pleaded guilty to criminal contempt in the first degree and waived hisright to appeal. He was thereafter sentenced, as a second felony offender, to1
Initially, our review of the record leads us to conclude that defendant did notknowingly, intelligently and voluntarily waive the right to appeal. When an appealwaiver is challenged, the operative question is whether the trial court has confirmed onthe record that the defendant understands the terms and conditions of his or her pleaagreement (see People v Sanders, 25 NY3d 337, 340 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]). A review of theplea allocution here shows that County Court was the first to raise an appeal waiver as acondition of the plea, and then gave the following explanation: "Now, it doesn't matterwhether guilt is a result of a plea of guilty or a jury verdict. Either way you have a rightto appeal. And the appeal would go to a higher court called the Appellate Division.These are five judges that sit together in Albany. They review the record of whathappened here. If they find any mistakes were made or any of your rights violated theycould vacate the conviction, reduce or throw out the sentence, or send everything back tome and have me do it all over again from the top. So you understand all of that?" [*2]Defendant simply responded "yes" and nothing more wassaid about the appeal waiver.
The flaw here is that while County Court clearly explained the right to appeal, itfailed to come back around to the point that defendant was actually waiving that distinctright. From his one-word response, we are left uncertain as to whether defendantunderstood the right to appeal or the plea requirement that he was waiving that right. Nordid the court inquire of defendant as to whether he discussed the waiver with counsel,who stood by without comment (see People v Phipps, 127 AD3d 1500, 1501 [2015]). Thisdeficiency in the record was not cured when defendant was asked to sign an appealwaiver later that same day at sentencing, for the court engaged in no substantivediscussion with defendant or his attorney as to whether defendant comprehended thewaiver. Finally, there is no explanation in the written waiver that "the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty"(People v Lopez, 6 NY3d at 256). As such, we conclude that the appeal waiver isinvalid. That being said, defendant's challenge to the voluntariness of his plea due to theasserted ineffective assistance of counsel attendant the appeal waiver was not preservedby a postallocution motion to withdraw his plea, and nothing was said during the pleacolloquy to trigger the narrow exception to the preservation requirement (see Peoplev Lopez, 71 NY2d 662, 665-666 [1988]; People v Ortiz, 127 AD3d 1416, 1417 [2015]).Accordingly, we affirm the judgment of conviction.
McCarthy, J.P., and Clark, J., concur.
Devine, J. (concurring). I have no quarrel with the affirmance of the judgment ofconviction. I write, rather, to express my belief that defendant knowingly, intelligentlyand voluntarily waived his right to appeal from the conviction and sentence.
"A waiver of the right to appeal may be elicited as a condition of a plea bargain, butit must be knowingly, voluntarily and intelligently entered into by the accused" (People v Johnson, 14 NY3d483, 486 [2010] [citations omitted]; see People v Bradshaw, 18 NY3d 257, 264 [2011]). It haslong been the rule that "there is no mandatory litany that must be used in order to obtain avalid waiver of appellate rights" (People v Johnson, 14 NY3d at 486; seePeople v Sanders, 25 NY3d 337, 341 [2015]). Rather than requiring a trial court to blindly follow a uniformprocedure, it need only ensure on the record that "a defendant has a full appreciation ofthe consequences of such waiver . . . [and] comprehend[s] that an appealwaiver is separate and distinct from those rights automatically forfeited upon a plea ofguilty" (People v Bradshaw, 18 NY3d at 264 [internal quotation marks andcitations omitted]; see People vLopez, 6 NY3d 248, 256 [2006]). In so doing, the trial court must assess all ofthe relevant factors "surrounding the waiver, including the nature and terms of theagreement and the age, experience and background of the accused" (People vSeaberg, 74 NY2d 1, 11 [1989]; see People v Sanders, 2015 NY Slip Op04755 at *2 [2015]).
Initially, defendant was only 24 years old at the time that he pleaded guilty, but he isa second felony offender, and his extensive prior involvement with the criminal justicesystem must be taken into account in assessing whether he knowingly and intelligentlywaived his right to appeal (see People v Sanders, 2015 NY Slip Op 04755 at *3[2015]). Regarding the waiver itself, County Court advised defendant during the pleacolloquy as to the meaning of the right to appeal, specified that an appeal could be takenfrom either "a plea of guilty or a jury verdict," and made clear that "a waiver of[defendant's] right to appeal" would be the "final thing" required under the plea offer.Although "[a] better practice might have been to explain to defendant that though he[*3]ordinarily retains the right to an appeal even afterpleading guilty, in this case he was being offered a particular plea by theprosecution on the condition that he give up that right," the failure by County Court to gointo that level of detail did not render the waiver invalid (People v Lopez, 6NY3d at 257 [emphasis added]). Defendant then indicated that he understood andconferred with defense counsel, after which he questioned County Court extensivelyregarding jail time credit, but raised no issues regarding the appeal waiver.
The plea colloquy accordingly reveals no confusion on the part of defendant as to theappeal waiver but, even if it did, any confusion was quickly dispelled later that day atsentencing. At that point, the record demonstrates that defendant consulted with counseland executed a written document declaring in bold print that it is a "waiver of [the] rightto appeal and other rights." The written waiver goes on to explain the right to appeal, anddefendant acknowledged in it that he had "been advised of, and waive[d], [his] right toappeal from the judgment of conviction or sentence." Defendant then reiterated in thewritten waiver that he had been "fully informed" of his right to appeal and was"voluntarily and knowingly" waiving it after discussing the matter withcounsel.[FN*] Thesefacts, in my view, demonstrate that there was a sufficient "judicial examination of thewaiver itself with a manifestation [of understanding by defendant] expressed on therecord" (People v Calvi, 89 NY2d 868, 871 [1996]), and that the waiver"reflect[ed] a knowing and voluntary choice" by defendant (People v Callahan,80 NY2d 273, 280 [1992]). I would therefore find that defendant had validly waived hisright to appeal from the conviction and sentence (see People v Ramos, 7 NY3d 737, 738 [2006]; People v McCaskill, 76 AD3d751, 752-753 [2010]).
Ordered that the judgment is affirmed.
Footnote *:It is somewhat peculiarfor a written appeal waiver to be executed at sentencing after the waiver is discussedduring a plea colloquy, but we have previously found such a procedure to be acceptable(see People v Collins, 53AD3d 932, 933 [2008], lv denied 11 NY3d 831 [2008]).