| People v Braithwaite |
| 2010 NY Slip Op 04509 [73 AD3d 656] |
| May 27, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DirkBraithwaite, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered May 18, 2009,convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in thethird degree, criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fifth degree, and sentencing him, as a second felonydrug offender, to concurrent terms of two years for each of the three counts, to be followed bythree years of postrelease supervision for third-degree possession and drug sale, and two years ofpostrelease supervision for fifth degree drug possession, unanimously affirmed.
We perceive no basis for reducing the sentence. However, defendant's purported waiver ofhis right to appeal was invalid. At the plea proceeding, defendant agreed to plead guilty to thethree charges contained in the indictment in exchange for the promised sentence. After defendantacknowledged the various trial rights he was giving up by pleading guilty, the court stated: "Youalso give up your right to appeal. Had you gone to trial in this case and been convicted, youcould have appealed the sentence as well as the conviction, by pleading guilty you give up thatright too. Understood?" The defendant answered, "Yes." No mention was made of the appealwaiver at sentencing, and there was no written waiver executed.
The purported appeal waiver was invalid because defendant "may have erroneously believedthat the right to appeal is automatically extinguished upon entry of a guilty plea" (People v Moyett, 7 NY3d 892,893 [2006] [invalid waiver of appeal where court advised defendant that "by pleading guilty yougive up your right to appeal the conviction"]). In this circumstance, and in the absence of awritten waiver, there is no indication in the record that defendant understood the distinctionbetween the right to appeal and the trial rights that are automatically forfeited as a result of aguilty plea (id.).
We previously have pointed out the problem with "the recurrent fusing, during allocution, ofthe defendant's right to appeal . . . with those rights waived by a guilty plea in caseswhere waiving the right to appeal is a condition of the plea bargain" (People v Williams, 59 AD3d 339,[*2]340 [2009], lv denied 12 NY3d 861 [2009]).Although "[a] court need not engage in any particular litany" to find a valid appeal waiver(People v Burney, 306 AD2d 173, 173 [2003], lv denied 100 NY2d 641 [2003][internal quotation marks and citation omitted]), the better practice is for the court to secure awritten waiver, along with a colloquy to ensure the defendant's understanding of its contents, or,at a minimum, to specifically articulate that the right to appeal is separate and distinct from the"panoply of trial rights automatically forfeited upon pleading guilty" (People v Lopez, 6 NY3d 248, 257[2006]). A separate allocution on the waiver of the right to appeal is critical because "[b]ywaiving the right to appeal in connection with a negotiated plea and sentence, a defendant agreesto end the proceedings entirely at the time of sentencing and to accept as reasonable the sentenceimposed" (id. at 255). Concur—Andrias, J.P., Catterson, Renwick, Richter andRomÁn, JJ.