| People v Streater |
| 2022 NY Slip Op 04668 [207 AD3d 952] [207 AD3d 952] |
| July 21, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James Streater, Appellant. |
Clea Weiss, Ithaca, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
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 ofaggravatedfamily offense and criminal contempt in the first degree.
In January 2019, defendant was charged with six counts of aggravated family offenseandtwo counts of criminal contempt in the first degree based upon allegations that he hadcontinuedcontact 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 ofcriminalcontempt in the first degree and waived his right to appeal as a condition of this guiltyplea.County Court sentenced him to consecutive prison terms of 2 to 4 years on each count,andcertain orders of protection were issued. Defendant appeals.
Initially, we agree with defendant that his waiver of the right to appeal is invalid. "Awaiverof the right to appeal is effective only so long as the record demonstrates that it was madeknowingly, intelligently and voluntarily. And though a trial court need not engage in anyparticular litany when apprising a defendant pleading guilty of the individual rightsabandoned, itmust make certain that a defendant's understanding of the terms and conditions of a pleaagreement is evident on the face of the record" (People v Lopez, 6 NY3d 248, 256 [2006] [citationsomitted]).When the trial court has, through written waiver and oral colloquy, "mischaracterized thenatureof the right a defendant was being asked to cede, an appellate court cannot be certain thatthedefendant comprehended the nature of the waiver of appellate rights" (People v Thomas, 34 NY3d545,565-566 [2019] [internal quotation marks and citation omitted]).
During the plea colloquy, County Court described to defendant in detail his right toappeal toa higher court, including the attendant right to assigned appellate counsel. The court thenmadeclear that, in order to receive the benefit of the plea bargain offered by the People and thesentence offered by the court, defendant would "have to give up that separate and distinctright toappeal." It was not conveyed to defendant that some appellate review would survive thiswaiver.Defendant then executed a written document pertaining to his right to appeal, amongother rights.This written waiver similarly described that, following a guilty plea, defendant wouldtypicallyretain "the right to appeal to a higher court to review the fairness of that conviction andanysentence imposed in the case." The waiver explained that "this right to appeal includesthe rightto the assignment of an attorney for that purpose" if a defendant cannot afford to hirecounsel. Itwent on to state "that a defendant can be asked to waive—that is, giveup—thisright to appeal in return for a promised sentence or range of sentences from the court,"and itaffirmed defendant's understanding that his waiver [*2]ofappealwould "apply to all legal issues that can be waived under the law, including any issuesregardingthe effectiveness of [his] attorney prior to [his] guilty plea in this case." Notably, the finalsentence before the signature page states as follows: "It is [defendant's] understandingandintention that [his] plea agreement and sentence will be a complete and final dispositionof thiscase."
Thus, both the oral colloquy and the written waiver included overbroadcharacterizations ofthe waiver of the right to appeal, without regard for defendant's well-settled retention of"theright to appellate review of very selective fundamental issues, including the voluntarinessof theplea and appeal waiver, legality of the sentence and the jurisdiction of the court"(People vThomas, 34 NY3d at 566). 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]overlybroad by mischaracterizing the rights waived as encompassing all state and federalappeals andpostconviction relief" (People vGamble, 190 AD3d 1022, 1024 [2021], lv denied 36 NY3d 1097[2021]).Notwithstanding our prior decisions indicating that an overbroad or misleadingcharacterizationof an appeal waiver may be remedied by qualifying language limiting the waiver to "alllegalissues that can be waived under the law," as well as assurances that a defendant hasdiscussed thewaiver with counsel (see e.g.People vSoto, 199 AD3d 1128, 1129 [2021]; People v McCoy, 198 AD3d 1021, 1022 [2021], lvdenied37 NY3d 1162 [2022]; People vThomas, 190 AD3d 1157, 1158-1159 [2021]), the "totality of thecircumstances" herefails to confirm that defendant understood the nature of the appellate rights being waived(People v Thomas, 34 NY3d at 559).[FN*]
As the waiver of appeal is invalid, defendant's contention that his sentence was harshorsevere is not precluded. However, defendant's sentence was neither harsh nor severegiven hisextensive criminal history and, in particular, his repeated convictions related to intimatepartnerviolence (see generally People vSoler, 52 AD3d 938, 941 [2008], lv denied 11 NY3d 741 [2008]; People v Spear, 37 AD3d870, 871[2007]; People v DeFayette, 27AD3d 840, 840-841 [2006], lv denied 7 NY3d 754 [2006]). Althoughdefendanturges this Court to consider certain statements by the victim and her mother that arguablydemonstrate their support and/or forgiveness, these statements appear to merely evince ahopethat defendant might obtain appropriate treatment while incarcerated, rather thanadvocating forleniency.
Finally, defendant's assertion that County Court interfered with his and trial counsel'sabilityto speak at sentencing is unpreserved based upon his failure to raise any objection atsentencing(see People v Green, 54 NY2d 878, 880 [1981]; People v Carrington, 194 AD3d 1253, 1255 [2021]; People v Signor, 173 AD3d1264,1267 [2019]).
Lynch[*3], Aarons, Reynolds Fitzgerald and Ceresia,JJ.,concur. Ordered that the judgment is affirmed.
Footnote *:As Chief Judge Lippmanwrotewith respect to plea adequacy, "it may seem a sign of judicial sophistication to eschew'litanies,''catechisms,' 'rituals,' 'scripts' and 'formulas' and to aspire instead to an exercise ofdiscretionbased on the 'totality' " (People vConceicao, 26 NY3d 375, 387 [2015, Lippman, Ch. J., concurring inpart anddissenting in part]). However, trial courts' avoidance of rote recitations in acceptingappealwaivers too often results in conflicting or misleading waiver language. "To be sure, theModelColloquy for the waiver of right to appeal drafted by the Unified Court System's CriminalJuryInstructions and Model Colloquy Committee neatly synthesizes [Court of Appeals]precedent andthe governing principles and provides a solid reference for a better practice" (PeoplevThomas, 34 NY3d at 567). In an effort to reduce the incidence of this recurringissue, it bearsnoting that this colloquy is accessible on the Unified Court System's website.