| People v McCaskill |
| 2010 NY Slip Op 06387 [76 AD3d 751] |
| August 12, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DiondreaMcCaskill, Also Known as Ruk, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered November 24, 2008, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a weapon in the second degree.
Following his participation in a gunfight in which two bystanders were shot, defendantpleaded guilty to one count of attempted criminal possession of a weapon in the second degree.County Court thereafter sentenced defendant, as agreed, to a prison term of five years to befollowed by five years of postrelease supervision. During the plea colloquy, defendant signed awaiver of the right to appeal in open court after counsel indicated that he had reviewed thewaiver with defendant and signed it as well. In addition, we note that County Court, inexplaining the terms of the plea agreement to defendant, indicated that he "would have to waiveor give up [his] right to appeal, but in return, all other charges would be satisfied. Do youunderstand?" In response, defendant questioned only the details of the length of his sentence.
Although County Court improperly failed to distinguish the right to appeal from the rightsthat defendant forfeited upon pleading guilty, we note that defendant's detailed written waiver ofthe right to appeal explained the nature of the right and the appellate process, contained anacknowledgment that he had discussed the right and the consequences of waiving it with [*2]counsel, and stated that he was waiving the right voluntarily. Givendefendant's thorough written waiver, the court's inquiry of defendant—albeitminimal—coupled with counsel's assurances that he had reviewed the written waiver withdefendant and the execution of the written waiver in open court were adequate to demonstrateboth that there was "some judicial examination of the waiver itself with a manifestationexpressed on the record" (People v Calvi, 89 NY2d 868, 871 [1996]) and that"defendant's waiver of the right to appeal reflect[ed] a knowing and voluntary choice"(People v Callahan, 80 NY2d 273, 280 [1992]; see People v Johnson, 14 NY3d 483, 486 n [2010]; People vMuniz, 91 NY2d 570, 575 [1998]).[FN*]Accordingly, defendant's argument that his sentence is harsh and excessive, which is his soleclaim on this appeal, is barred by his valid waiver of the right to appeal (see People v Ramos, 7 NY3d 737,738 [2006]; People v McKenzie, 66AD3d 1056, 1056 [2009]; People vRobles, 53 AD3d 686, 687-688 [2008], lv denied 11 NY3d 794 [2008]; People v Lewis, 48 AD3d 880,881 [2008]; People v Romano, 45AD3d 910, 914-916 [2007], lv denied 10 NY3d 770 [2008]; cf. People vCallahan, 80 NY2d at 283).
Peters and Kavanagh, JJ., concur.
Spain, J. (concurring). I write separately to explain our view that the record on appeal doesnot afford a sufficient basis upon which to conclude that defendant's waiver of the right to appealwas knowing, intelligent or voluntary. While the requirement that defendant waive his right toappeal was generically recited up front as a term of the plea agreement and defendant signed awritten waiver in open court, nothing on "the face of the record" reflects—as itmust—defendant's understanding of the meaning of that condition of the pleaagreement, so as to permit its enforcement (People v Callahan, 80 NY2d 273, 280[1992]; accord People v Lopez, 6 NY3d [*3]248, 256[2006]; People v Seaberg, 74 NY2d 1, 11 [1989]).
"Giving up the right to appeal is not a perfunctory step" (People v Lopez, 6 NY3d at256). There is no dispute that a waiver of the right to appeal, whether done orally during a pleacolloquy or in combination with a written waiver, will be enforced only when the record actuallydemonstrates that it was knowingly, voluntarily and intelligently made, a determinationnecessarily made, in the first instance, by the trial court (see People v Lopez, 6 NY3d at256; People v Callahan, 80 NY2d at 280; People v Seaberg, 74 NY2d at 11).While eschewing "any particular litany," the Court of Appeals has steadfastly adhered to theprinciple that "a defendant's understanding of the terms and conditions of a pleaagreement [must be] evident on the face of the record" (People v Lopez, 6 NY3d at 256[emphasis added]; accord People vJohnson, 14 NY3d 483, 486 [2010]; People v Callahan, 80 NY2d at 280). Thisrequirement stems, in part, from the fact that "appellate courts also have the responsibility tooversee the process and to review the record to ensure that the defendant's waiver of the right toappeal reflects a knowing and voluntary choice" (People v Callahan, 80 NY2d at 280). Ifthe defendant's understanding is not adequately reflected in a colloquy on the record, informedappellate review is simply not possible.
What must, in any given case, be reflected on the record about a defendant's understandingof an appeal waiver when he or she executes a written appeal waiver in open court is the subjectof ongoing debate. At one end, a "silent record" will not suffice and, thus, where a defendantreportedly signs an appeal waiver outside of court and there is "no record discussion between thecourt and [the] defendant concerning the waiver," it is ineffective (id. at 283). Theremust be "some judicial examination of the waiver itself with a manifestation expressed on therecord, as may be appropriate . . . to show satisfaction of [Court of Appeals']protocols" (People v Calvi, 89 NY2d 868, 871 [1996]). Thus, in our view, the content ofthe written waiver cannot, by itself, establish the defendant's understanding or satisfy the court'sduty of inquiry. On the other end, in People v Lopez (supra) the Court ofAppeals recommended the practice of combining an in-court execution of a written appealwaiver with a concomitant detailed colloquy.
While the Court of Appeals has not offered specific guidance on what must bediscussed—on the record—when a defendant is executing a written appeal waiver,its decisions are instructive. At a minimum, we firmly believe that there must be some recorddiscussion between the defendant, counsel and the court concerning the appeal waiver, in whichthe defendant acknowledges the signature (or signs in open court) and—directly orthrough counsel—expresses an awareness and understanding of its content. This can beaccomplished, by way of example, by the court providing an explanation on the record or by anon-the-record indication that counsel previously discussed the matter with the defendant. Underany scenario, however, the defendant's understanding must be reflected, e.g., by assurance thathe or she has no questions on the matter either for the court or counsel (see People vCallahan, 80 NY2d at 283; see e.g.People v Mosher, 45 AD3d 970, 970 [2007], lv denied 10 NY3d 814 [2008]).Thus, whether the defendant's appeal waiver occurs solely as part of the oral plea colloquy, or isaccompanied by a written waiver, the overriding consideration and prerequisite are that thedefendant's understanding of that condition of the plea, as with all others, be "apparent on theface of the record" (People v Callahan, 80 NY2d at 280). This is not a test or a"mandatory litany" (People v Johnson, 14 NY3d at 486) or "a uniform mandatorycatechism" (People v Seeber, 4NY3d 780, 781 [2005] [citation omitted]) but, rather, a principle by which appeal waiversmay be competently reviewed on appeal. It should not be relegated to a mere "recommendation"to trial courts.[*4]
People v Ramos (7 NY3d 737 [2006]), a memorandum decisionoften cited in cases in which there is a written appeal waiver, is not to the contrary. Nothing inRamos supports the conclusion either (1) that a written appeal waiver alone can ever beadequate, or (2) that the Court eliminated the long-standing requirement in People vSeaberg (74 NY2d at 11) and its progeny that the defendant's understanding must bereflected "upon the record." In all cases, the record and colloquy must be "sufficient to guaranteethat [the] defendant understood the valued right [he or she] was relinquishing" (People vLopez, 6 NY3d at 257).
Requiring trial courts to engage in a limited inquiry of a defendant (and counsel) who isexecuting a written appeal waiver will also insure that oral colloquies by trial judges acceptingappeal waivers are not summarily dispensed with and replaced by written appeal waivers (oftencontaining other lengthy plea conditions) drafted by prosecutors, which may not be fullyexplained to or understood by the accused. Indeed, we have condemned the practice of "plea bycheck off list" in which writings containing waivers and agreements are "substituted foron-the-record discussions between the defendant and the court" (People v McDermott, 68 AD3d1453, 1454 [2009]). We reiterated that—aside from a written waiver—courtshave a "constitutional responsibility to review the terms and conditions of the plea agreement,the defendant's rights and those rights that the defendant is giving up and the concomitantresponsibility to ascertain that the defendant understands them and is knowingly, intelligentlyand voluntarily waiving them [all of which] must appear 'on the face of the record' " (id.at 1454, quoting People v Lopez, 6 NY3d at 256). Mandating a sufficient, albeitminimum, on-the-record discussion of an appeal waiver will also more successfully achieve thegoal of finality that underscores plea bargaining in general and waivers of appeal in particular,i.e., "prompt, effective resolution of criminal litigation" (People v Lopez, 6 NY3d at255).
Here, because the record contains nothing to reflect defendant's understanding of the appealwaiver signed in open court, and no discussion occurred regarding its content and meaning, thereis not an adequate basis upon which to conclude that it was voluntary, intelligent and knowing.Counsel's cursory, fleeting remark, "I have reviewed it with Mr. McCaskill," simply does notestablish that defendant understood it. Thus, we would hold that the appeal waiver isunenforceable. However, unpersuaded by defendant's contention that his sentence is harsh andexcessive, we would likewise affirm the judgment of conviction.
Stein, J., concurs. Ordered that the judgment is affirmed.
Footnote *: Despite repeated opportunities,the Court of Appeals has not offered specific guidance on what must be discussed during a pleacolloquy when defendant has executed a written waiver. This refusal to specify what must bestated during plea colloquies is consistent with the Court's long-standing instruction that "there isno requirement for a uniform mandatory catechism of pleading defendants" (People vFiumefreddo, 82 NY2d 536, 543 [1993] [internal quotation marks and citations omitted]; see People v Seeber, 4 NY3d 780,781 [2005]). Therefore, we decline to adopt the standard set forth in the concurrence fordetermining whether a plea colloquy accompanying a written waiver of the right to appeal isadequate. We are in agreement, however, that the best practice for County Court to follow wouldhave been not only to witness defendant review and execute a detailed written waiver in opencourt, but also to "explain[ ] the significance of the appeal waiver and . . . confirm[] that [defendant] had discussed the matter with his attorney and that he understood theconsequences of the waiver" during the plea colloquy (People v Mosher, 45 AD3d 970, 970 [2007], lv denied 10NY3d 814 [2008]; see People vDiaz, 72 AD3d 1349, 1350 [2010]; People v Stokely, 49 AD3d 966, 967-968 [2008]).