| People v Oquendo |
| 2013 NY Slip Op 02320 [105 AD3d 447] |
| April 4, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jose Oquendo, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Ravi Kantha of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Eugene Oliver, J.), rendered September16, 2011, convicting defendant, upon his plea of guilty, of attempted robbery in thesecond degree, and sentencing him, as a second felony offender, to a term of six years, tobe followed by five years of postrelease supervision, unanimously affirmed.
We find that defendant's purported waiver of his right to appeal was invalid. At theplea proceeding, the court told defendant that the promised sentence would be six yearsof incarceration, with five years of postrelease supervision, and that the waiver of appealwas part of the sentence. Other than this brief reference, the court said nothing moreabout the appellate waiver. Defendant also executed a written waiver of appeal.
A waiver of the right to appeal is effective " 'only so long as the record demonstratesthat it was made knowingly, intelligently and voluntarily' " (People v Bradshaw, 18 NY3d257, 259 [2011], quoting People v Lopez, 6 NY3d 248, 256 [2006]). Although acourt need not engage in any particular catechism to find a valid appeal waiver, it mustmake certain that the defendant has "a full appreciation of the consequences of [the]waiver" (Bradshaw, 18 NY3d at 264 [internal quotation marks omitted]). Anecessary component of a knowing and voluntary appeal waiver is evidence that "thedefendant understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256).
We conclude that defendant here did not knowingly, voluntarily, and intelligentlywaive his appellate rights. The court made only a fleeting reference to the appeal waiver,and included it in the description of defendant's sentence. By conflating the waiver ofappeal with the sentence to be imposed, the court failed to adequately ensure thatdefendant had a "full appreciation of the consequences of [the] waiver"(Bradshaw, 18 NY3d at 264 [internal quotation marks omitted]), and that he wasgiving up something more than what is ordinarily forfeited upon a guilty plea (seeLopez, 6 NY3d at 256).
Although defendant did sign a waiver of his right to appeal, "a written waiver is not acomplete substitute for an on-the-record explanation of the nature of the right to appeal,and some acknowledgment that the defendant is voluntarily giving up that right" (People v Bradshaw, 76 AD3d566, 569 [2d Dept 2010], affd 18 NY3d 257 [2011]). Moreover, here, thewritten waiver form states that the court had advised defendant of the nature of theappellate [*2]rights being waived. The record of theproceedings, however, contains no such statements by the court. Under thesecircumstances, there is an insufficient basis to conclude that defendant's purported waiverwas knowing, voluntary and intelligent (see People v Elmer, 19 NY3d 501, 510 [2012]).
We note that litigation over the validity of appeal waivers, which arises regularlyfrom many courts, can best be avoided if trial judges separately allocute defendants onthe waiver of the right to appeal (see People v Braithwaite, 73 AD3d 656, 657 [1st Dept2010], lv denied 15 NY3d 849 [2010]). We again remind the courts that thebetter practice is to secure a written waiver, along with a thorough colloquy to ensure thedefendant's understanding of its contents (id.). It would be best if the court madeclear that this is a separate and important right being waived, and that by signing thewaiver, the plea and sentence are final, and the defendant agrees to accept the sentenceimposed. The court cannot rely solely on defense counsel to explain the significance ofthe written waiver.
Although we find that defendant's waiver of the right to appeal was invalid, weperceive no basis for reducing the sentence. This is defendant's third felony conviction,and the sentence imposed was well below the sentence defendant would have faced hadhe been found guilty at trial. Concur—Friedman, J.P., Moskowitz, Degrasse,Richter and Gische, JJ.