| People v Bouton |
| 2013 NY Slip Op 04049 [107 AD3d 1035] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SethA. Bouton, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Mara Y. Grace of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), entered July 15, 2010, convicting defendant upon his plea of guilty of thecrime of criminal mischief in the third degree.
Defendant pleaded guilty to criminal mischief in the third degree in satisfaction of afour-count indictment and other pending charges. Under the terms of the plea agreement,he agreed to be sentenced to four months in jail followed by five years of probation,waive his right to appeal and pay restitution. Defendant appeals.
Initially, we agree with defendant that his waiver of appeal was invalid. At thebeginning of the plea proceeding, defense counsel recited the plea agreement and notedthat it included "a waiver of appeal." This aspect of the plea was never mentioned againduring that proceeding. As County Court never discussed the waiver, it necessarily didnot assure itself that defendant understood that waiver. At sentencing, after the courtimposed the sentence of incarceration and probation, the court had defendant sign thewritten waiver of appeal and verified that he signed it after reviewing it with counsel. Butthe court did not ensure that "defendant ha[d] 'a full appreciation of the consequences' ofsuch waiver" (People vBradshaw, 18 NY3d 257, 264 [2011], quoting People v Seaberg, 74NY2d 1, 11 [1989]), which requires record proof that the defendant "comprehend[s] thatan appeal waiver 'is separate and distinct [*2]from thoserights automatically forfeited upon a plea of guilty' " (People v Bradshaw, 18NY3d at 264, quoting People vLopez, 6 NY3d 248, 256 [2006]). This was especially important consideringdefendant's age, mental health history and lack of prior criminal history; defendant was19 years old at the time of the crime and 21 at the time of sentencing, had been diagnosedand had ongoing problems with attention deficit hyperactivity disorder, past history ofsuicidal ideation, bipolar disorder, a possible learning disorder and a significant historyof acting out on impulse. The written waiver also failed to explain the separate anddistinct nature of the right being waived. As it is not evident on the face of the record thatdefendant was aware of this separate and distinct nature, we cannot be sure that hiswaiver of the right to appeal was knowingly and intelligently made (see People vLopez, 6 NY3d at 256; People v Secore, 102 AD3d 1059, 1060 [2013]).
The concurrence states that nothing in the colloquy "indicated any lack ofcomprehension on defendant's part as to the consequences of the waiver." Due to theshort nature of the portion of the colloquy addressing the waiver—which tookplace at the sentencing proceeding, after sentence was imposed, rather than at the pleacolloquy when the terms of the plea agreement were being discussed—there is alsonothing in the colloquy to indicate comprehension on defendant's part as to theconsequences of the appeal waiver. Because it is incumbent on the trial court to " 'makecertain that a defendant's understanding' of the waiver, along with the other 'terms andconditions of a plea agreement[,] is evident on the face of the record' " (People vBradshaw, 18 NY3d at 265, quoting People v Lopez, 6 NY3d at 256), thislack of record information indicating defendant's understanding of the waiver dictates afinding that the waiver was not knowingly and intelligently made.
Regardless of the invalidity of the waiver of appeal, we affirm. Defendant's challengeto the voluntariness of his guilty plea is not preserved, as the record does not indicate thathe moved to withdraw his plea or vacate the judgment of conviction, and he made nostatements during the plea colloquy that would bring this case within the narrowexception to the preservation rule (see People v Secore, 102 AD3d at 1060; People v Benson, 100 AD3d1108, 1108-1109 [2012]). Defendant's ineffective assistance of counsel argument issimilarly unpreserved for our review (see People v Walton, 101 AD3d 1489, 1490 [2012], lvdenied 20 NY3d 1105 [2013]; People v Benson, 100 AD3d at 1109).
Peters, P.J., and Egan Jr., J., concur.
Rose, J., concurs in a memorandum as follows: I differ with the majority only to theextent that I am satisfied that defendant's waiver of appeal was valid. County Courtseparately explained the rights encompassed by the waiver of appeal before acceptingdefendant's written appeal waiver, which was executed in open court. The court thenobtained defendant's assurance that he understood the rights being waived and, afterconsulting with his attorney, defendant agreed to waive them orally. Nothing in thecolloquy between defendant and the court indicated any lack of comprehension ondefendant's part as to the consequences of the waiver. Accordingly, I would find it to be aknowing, intelligent and voluntary waiver of appeal (see People v Benson, 100 AD3d 1108, 1108 [2012]; People v Santana, 95 AD3d1503, 1503 [2012]).
Ordered that the judgment is affirmed.