| People v Sanders |
| 2013 NY Slip Op 08276 [112 AD3d 748] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rasaun Sanders, Also Known as Boo Cracks,Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered May 27, 2010, convicting him of manslaughter in the first degreeand gang assault in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant, while acting in concert with several others, stabbed the 16-year-oldvictim to death. He was charged, inter alia, with murder in the second degree. Followingthe partial denial of his motion to suppress certain inculpatory statements he made to lawenforcement officials, the defendant decided to plead guilty to manslaughter in the firstdegree and gang assault in the first degree in exchange for concurrent terms of 20 yearsof imprisonment. During the plea colloquy, the prosecutor asked the defendant if heunderstood that, as a condition of this plea, he was waiving the right to appeal hisconviction and sentence to "the Appellate Division Second Department," if he haddiscussed the waiver with his attorney, and if he was willing, in consideration of thisplea, to waive that right voluntarily. The defendant answered in the affirmative to allthree questions. Thereafter, the defendant was sentenced in accordance with the terms ofhis plea agreement.
On appeal, the defendant contends that the County Court erred in denying portions ofhis suppression motion. However, the defendant is precluded from raising that contentionon appeal by virtue of his valid appeal waiver.
In order to be enforceable, a waiver of the right to appeal must be made knowingly,voluntarily, and intelligently (see People v Lopez, 6 NY3d 248, 255 [2006]; People vSeaberg, 74 NY2d 1, 10 [1989]). In determining whether a waiver is valid, all therelevant facts and circumstances surrounding the waiver, including the nature and termsof the agreement, as well as the age, experience, and background of the accused, must beconsidered (see People vBradshaw, 18 NY3d 257, 264 [2011]; People v Seaberg, 74 NY2d at11). Because a trial court must take into account all the relevant facts and circumstancesof the myriad defendants who appear before it and the permutations of various plea deals,it need not engage in any particular litany or catechism in satisfying itself that a knowing,voluntary, and intelligent appeal waiver has been entered (see People vBradshaw, 18 NY3d at 264). The trial court, with the benefit of having theopportunity to observe the defendant before it, is in the [*2]best position to make this determination in the first instance(see id.; People v Callahan, 80 NY2d 273, 280 [1992]).
In People v Lopez (6NY3d 248, 254 [2006]), as part of his plea colloquy, and following an explanationof the trial rights forfeited by virtue of a guilty plea, the court said to the defendant, "'You also understand you're giving up your right to appeal, that is, to take to a highercourt than this one any of the legal issues connected with this case? You understandthat?' " The defendant answered, " 'Yes.' " The defendant did not sign a written appealwaiver. The Court of Appeals held that the waiver was effective, noting that the nature ofthe right being waived was adequately described (see id. at 257).
Similarly, in People v Torres (236 AD2d 642 [1997]), the court asked thedefendant if his attorney had explained to him that the waiver of appeal meant he couldnot take the case to a higher court, and the defendant replied that counsel had, and that hehad consented to it. This colloquy, this Court held, while "terse," was "enough" toconclude that the waiver was made knowingly, voluntarily, and intelligently (id.).
Consistent with our precedent and as guided by Lopez, this same colloquy,advising a defendant that he or she has the right to appeal his or her conviction andsentence to the Appellate Division, Second Department, has been repeatedly upheld bythis Court as resulting in a valid waiver (see People v Arias, 100 AD3d 914 [2012]; People v Gonzalez, 93 AD3d679 [2012]; People vBrown, 78 AD3d 723 [2010]; People v Ramos, 77 AD3d 773 [2010]; People v Buniek, 52 AD3d621 [2008]; People vReina, 35 AD3d 509 [2006]; People v Rosas, 34 AD3d 605 [2006]; People v Sherrill, 27 AD3d588 [2006]; People vCarden, 27 AD3d 573 [2006]; People v Eaton, 14 AD3d 577 [2005]; People v Williams, 13 AD3d661 [2004]; People v Mercer, 204 AD2d 741 [1994]). Although the dissentconcludes that these cases are of "limited precedential value" because they do not"contain any description of the plea colloquy at issue," it is well settled that a court maytake judicial notice of its own records in prior cases (see Matter of Allen vStrough, 301 AD2d 11, 18 [2002]; New York State Dam Ltd. Partnership vNiagara Mohawk Power Corp., 222 AD2d 792, 794 n [1995]; Sam & MaryHous. Corp. v Jo/Sal Mkt.Corp., 100 AD2d 901, 902 [1984]; People vSingleton, 36 AD2d 725 [1971]).
While the words "higher court" were not used in this instance, as they were inLopez and Torres, reference was made to the Appellate Division, SecondDepartment, which is a higher court, and the one to which the defendant would have hadthe right to appeal directly had he not waived his right to appeal. There is no distinctionbetween the two references. Nevertheless, the dissent posits that a nonlawyer would notunderstand what the right to appeal to the Appellate Division would mean. But, thedefendant in this case was 27 years old and "no stranger to the criminal justice system"(People v Korona, 197 AD2d 788, 790 [1993]; People v Graham, 177AD2d 505, 506 [1991]), having multiple prior convictions, including a federalconviction and a New York state felony conviction, the latter of which resulted in hisbeing adjudicated a second violent felony offender. The age, experience, and backgroundof the defendant all support the County Court's determination that he understood hisappellate rights (see People vArias, 100 AD3d 914 [2012]). Contrary to the dissent's suggestion, ourconclusion that the defendant understood the nature of the right to appeal, in part, basedon his background, is not speculative. The Court of Appeals has explicitly permitted theconsideration of a defendant's background (see People v Bradshaw, 18 NY3d at260; People v Seaberg, 74 NY2d at 11), and where, as here, the defendant is 27years old and has multiple prior convictions, a court may fairly infer that he understandswhat it means to have the right to appeal to the Appellate Division, Second Department(see People v Griffin, 195 AD2d 766, 767 [1993]). Notably, in this case, thedefendant exercised that right by filing, pro se, with this Court, a notice of appeal andrequesting the appointment of counsel.
Accordingly, since the defendant validly waived his right to appeal, appellate reviewof the denial of his suppression motion is precluded, and the judgment must be affirmed.Rivera, J.P., Chambers and Lott, JJ., concur.
[*3]Hall, J., dissents, and votes to reverse thejudgment and grant that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement officials: I respectfully dissent from themajority's determination, first, because I find that the defendant did not validly waive hisright to appeal. Additionally, in my view, the defendant did not knowingly, intelligently,and voluntarily waive his right to seek appellate review of the hearing court's suppressionruling. Furthermore, I believe that the hearing court erred in failing to suppress certainstatements made by the defendant to law enforcement officials.
In People v Lopez (6NY3d 248 [2006]), the Court of Appeals expressed that "[b]ecause only a fewreviewable issues survive a valid appeal waiver, it is all the more important for trialcourts to ensure that defendants understand what they are surrendering when they waivethe right to appeal. Giving up the right to appeal is not a perfunctory step" (id. at256).
Thus, a waiver of the right to appeal is effective only so long as the recordestablishes that it was made knowingly, intelligently, and voluntarily (see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Lopez, 6 NY3d at 256; People vCalvi, 89 NY2d 868, 871 [1996]). "An appellate waiver meets this standard when adefendant has 'a full appreciation of the consequences' of such waiver" (People vBradshaw, 18 NY3d at 264, quoting People v Seaberg, 74 NY2d 1, 11[1989]). For instance, a defendant must comprehend that an appeal waiver "is separateand distinct from those rights automatically forfeited upon a plea of guilty" (People vLopez, 6 NY3d at 256; see People v Bradshaw, 18 NY3d at 264). Althougha "trial court need not engage in any particular litany when apprising a defendantpleading guilty of the individual rights abandoned, it must make certain that a defendant'sunderstanding of the terms and conditions of a plea agreement is evident on the face ofthe record" (People v Lopez, 6 NY3d at 256).
Here, the entire colloquy regarding the waiver of the defendant's right to appeal wasas follows: The prosecutor asked the defendant, "[d]o you understand that as a conditionof this plea you are waiving the right to appeal your conviction and sentence to theAppellate Division Second Department?" The defendant responded, "[y]es." Theprosecutor then asked, "[h]ave you discussed this waiver of the right to appeal with yourattorney?," and the defendant replied, "[yes]." Finally, the prosecutor asked, "[i]nconsideration of this negotiated plea do you now voluntarily waive your right to appealyour conviction and sentence under this indictment?," and the defendant responded,"[y]es."
In my view, this colloquy is insufficient to establish that the defendant knowingly,intelligently, and voluntarily waived his right to appeal. Indeed, the defendant'sunderstanding of the nature of his right to appeal is not apparent on the face of therecord. Neither the prosecutor nor the plea court explained to the defendant the nature ofhis right to appeal. That is, the defendant was never informed of what the right to appealactually means. The plea court made no effort to determine whether the defendant fullyappreciated the consequences of the appeal waiver (see People v Bradshaw, 18NY3d at 259), and failed to ensure that the defendant grasped the minimal informationpertaining to the appeal waiver that the prosecutor provided during the plea colloquy (see People v Hernandez, 96AD3d 783, 783 [2012]). In addition, the defendant did not execute a written waiverdetailing the rights he would be giving up by waiving his right to appeal (cf. People v Ramos, 7 NY3d737 [2006]).
The majority relies heavily on People v Nicholson, a companion case toLopez. In Nicholson, the defendant was advised during the plea colloquyas follows: " 'You also understand you're giving up your right to appeal, that is, to take toa higher court than this one any of the legal issues connected with this case? Youunderstand that?' " (People v Lopez, 6 NY3d at 254). The defendant respondedin the affirmative. The Court of Appeals found that the record in Nicholsondemonstrated a knowing and intelligent waiver of the right to appeal (see id. at257). Significantly, in Nicholson and People v Torres (236 AD2d 642[1997]), another case on which the majority relies, the record contained at least someexplanation in plain terms of the meaning of the right to appeal.
In my view, the plea colloquy found to be sufficient in Nicholson is theabsolute [*4]minimum that must be conveyed to adefendant in order for the right to appeal to be validly waived. It is also my opinion thatthe plea colloquy here falls short of the minimum standard in Nicholson. At theplea proceeding, the prosecutor did not, as the court did in Nicholson, explainthat the defendant's right to appeal included the right to take his case to a higher court toraise any legal issues in connection with the case (cf. People v Lopez, 6 NY3d at254). Furthermore, the prosecutor did not impress upon the defendant that, by waivinghis right to appeal, his conviction would be final (cf. People v Bradshaw, 18NY3d at 266 [discussing Peoplev Ramos, 7 NY3d 737 (2006)]).
Rather, the prosecutor advised the defendant that, as a condition of this plea, he waswaiving his "right to appeal [his] conviction and sentence to the Appellate DivisionSecond Department." While the terms "right to appeal" and "Appellate Division SecondDepartment" may be widely known to judges, lawyers, and other members of the legalcommunity, there is no indication on this record that, from these terms, the defendantunderstood the nature of the rights he was surrendering by waiving his right to appeal.
The majority posits that there is no distinction between the words "higher court" and"Appellate Division, Second Department." On this point, I respectfully disagree, but notmerely on the basis of a semantical distinction. From the words "higher court," adefendant has the impression that there is some other court, with authority over the courtin which he or she is pleading guilty, that could possibly review the legality of his or hercase. The concept of a "higher court" is much more understandable to a person lackinglegal training than is a reference to the Appellate Division, Second Department. To anonlawyer, the words "Appellate Division, Second Department" are simply jargon.
The majority makes the valid observation that the defendant is no stranger to thecriminal justice system, and that his age, experience, and background factor into thedetermination of whether he validly waived his right to appeal (see People vSeaberg, 74 NY2d at 11). However, given the plea colloquy on this record, the factthat the defendant has multiple prior convictions does not lead me to the conclusion thatthe defendant was aware of his right to appeal and the significance of waiving it (cf.People v Graham, 177 AD2d 505 [1991]). Indeed, whatever information thedefendant was, or was not, provided with regard to his right to appeal in those priorcriminal proceedings is not in this record. As a result, this Court is forced to speculatethat the defendant gained an understanding of the nature of his right to appeal from hisprior contacts with the criminal justice system. I am not comfortable with making adetermination as to whether a defendant validly waived the important right to appealbased on such speculation.
I also acknowledge that this Court has upheld the validity of appeal waiversinvolving colloquies similar to the one at issue here (see e.g. People v Arias, 100 AD3d 914 [2012]; People v Brown, 78 AD3d723 [2010]; People vRamos, 77 AD3d 773 [2010]; People v Buniek, 52 AD3d 621 [2008]; People v Rosas, 34 AD3d605 [2006]; People vSherrill, 27 AD3d 588 [2006]; People v Williams, 13 AD3d 661 [2004]). Those decisions,however, do not contain any description of the plea colloquy at issue and, thus, in myview, are of limited precedential value. In any event, it is my opinion that those decisionsfall below the minimum standard set forth in Nicholson.
Accordingly, I find that the defendant's understanding of the nature of his right toappeal is not evident on the face of the record (see People v Lopez, 6 NY3d at256). Thus, I find that the purported waiver of the defendant's right to appeal is invalidand, as a result, does not preclude review of the contentions raised in his appellate brief.
The defendant contends that the hearing court erred in denying that branch of hisomnibus motion which was to suppress certain statements he made to law enforcementofficials. During the plea colloquy, immediately after the perfunctory discussion of thewaiver of the right to appeal, the prosecutor, addressing defense counsel, asked, "[i]nfurther consideration of this negotiated plea, [defense counsel], do you withdraw allmotions made by you whether pending or decided?" Defense counsel replied, "[y]es,withdrawn." The prosecutor did not address the defendant at all with respect to thewithdrawal of all motions, both pending and decided.[*5]
Thus, the defendant did not expressly agree towithdraw all motions, both pending and decided. Rather, his attorney did. Significantly,however, there is no indication on the record that the defendant even understood therights he was giving up by his attorney withdrawing all motions, both pending anddecided. Neither the prosecutor nor the plea court made any attempt to explain to thedefendant that, by his attorney withdrawing all motions both pending and decided, hewould be giving up his right to seek appellate review of the suppression ruling (cf.People v Esajerre, 35 NY2d 463, 465 [1974] [prior to the defendant withdrawing hismotion to suppress, the Assistant District Attorney enumerated some of the possiblerights the defendant might be giving up by withdrawing the motion]). Furthermore, theplea court failed to conduct a sufficient inquiry to determine whether the defendantunderstood that his plea was conditioned on his withdrawal of all motions, both pendingand decided, and that the defendant himself agreed to such condition (see People v Balkum, 71AD3d 1594, 1595 [2010]; cf. People v Toye, 264 AD2d 401, 401-402[1999]).
Just as a waiver of the right to appeal will be effective only so long as the recordestablishes that it was made knowingly, intelligently, and voluntarily (see People vBradshaw, 18 NY3d at 264; People v Lopez, 6 NY3d at 256), a waiver ofthe right to seek appellate review of a suppression ruling will be effective only so long asit was made knowingly, intelligently, and voluntarily (see People v Williams, 55AD3d 759 [2008]; People v Castillo, 208 AD2d 944 [1994]; People vHolder, 166 AD2d 720 [1990]; People v Williams, 143 AD2d 162, 163[1988]). On this record, I cannot conclude that the defendant knowingly, intelligently,and voluntarily waived his right to seek appellate review of the suppression ruling. Thus,as I see it, the defendant is not precluded from contending that the hearing court erred indenying that branch of his omnibus motion which was to suppress certain statements hemade to law enforcement officials.
Testimony elicited at the suppression hearing established that the defendant wasarrested in connection with the stabbing death of the victim on June 15, 2009, atapproximately 2:00 p.m. The defendant was taken to police headquarters and, atapproximately 3:20 p.m., Detective Anthony Mitchell read the defendant hisMiranda warnings (see Miranda v Arizona, 384 US 436, 444-445 [1966])from a pre-printed form, and the defendant signed the form. The defendant then deniedany involvement in the incident. Upon further discussion, the defendant stated that hehad heard that others were involved in the incident, and that others had stabbed thevictim.
At some point thereafter, an agent from the Federal Bureau of Investigation(hereinafter the FBI agent), who had been helping the police investigate gang activity,came into the interview room. The FBI agent informed the defendant of the FBI'sinvolvement "in terms of the gang angle," the FBI's concerns, and the penalty thedefendant could be facing. Specifically, the FBI agent told the defendant that he could beprosecuted federally if he was involved in the homicide, and that he might be a candidatefor the death penalty. The defendant said nothing in response, and the FBI agent left theinterview room.
Detective Mitchell continued to talk with the defendant until approximately 5:30p.m., when a Detective Ossipo entered the interview room. After Detective Ossipoarrived, the defendant admitted to stabbing the victim. Subsequently, at approximately7:00 p.m., the defendant made a videotaped statement, after being read hisMiranda rights again.
The hearing court denied that branch of the defendant's omnibus motion which wasto suppress the above-mentioned statements. While the hearing court acknowledged thatthe FBI agent's statement regarding the death penalty was "not the gentlest nudge theCourt had ever heard," it concluded that the statement was not coercive. However, I findthat the FBI agent's statement, which, in essence, threatened the defendant with thepossibility of death, was coercive and, as a result, the above-mentioned statements to lawenforcement officials were involuntarily made.
"Evidence of a written or oral confession, admission, or other statement made by adefendant with respect to his participation or lack of participation in the offense charged,may not be received in evidence against him in a criminal proceeding if such statementwas involuntarily made" (CPL 60.45 [1]; see People v Mateo, 2 NY3d 383, 413[2004], cert denied 542 US 946 [2004]). Pursuant to CPL 60.45 (2) (a), aconfession is "involuntarily made" when it is obtained "by means of any . . .[*6]improper conduct or undue pressure which impairedthe defendant's physical or mental condition to the extent of undermining his ability tomake a choice whether or not to make a statement" (CPL 60.45 [2] [a]). "To determinevoluntariness, courts review all of the surrounding circumstances to see whether thedefendant's will has been overborne" (People v Mateo, 2 NY3d at 413; seePeople v Anderson, 42 NY2d 35, 41 [1977]). Where a defendant's will has beenoverborne and his or her capacity for self-determination has been critically impaired, theuse of a defendant's confession will offend due process (see Culombe vConnecticut, 367 US 568, 602 [1961]; People v Anderson, 42 NY2d at 41;People v Aveni, 100 AD3d228, 237 [2012]). Moreover, "coercive police activity is a necessary predicate to thefinding that a confession is not 'voluntary' within the meaning of the Due Process Clauseof the Fourteenth Amendment" (Colorado v Connelly, 479 US 157, 167 [1986]).
"[W]hen interrogating a suspect, the police may, as part of their investigatory efforts,deceive a suspect, and any resulting statement will not be suppressed for that reasonalone" (People v Aveni, 100 AD3d at 238; see People v Pereira, 26NY2d 265, 268-269 [1970]; People v McQueen, 18 NY2d 337 [1966])."However, even with a voluntary, knowing, and intelligent waiver of one'sMiranda rights, there are boundaries the police cannot cross during aninterrogation" (People v Aveni, 100 AD3d at 238). That is, while deception maybe used to obtain a statement, police conduct must not be so "fundamentally unfair as todeny due process" (People v Tarsia, 50 NY2d 1, 11 [1980]; see People vAveni, 100 AD3d at 238; US Const Amends V, XIV; NY Const, art I, § 6;CPL 60.45 [1]).
In my analysis of this issue, I find that the FBI agent coerced the defendant'sconfession by threatening him with the possibility of receiving the death penalty. TheFBI agent's threat was false, as the defendant did not actually face the potential ofreceiving the death penalty, but this falsehood is not the sole basis for my determination.The defendant was threatened, by the FBI agent, with the possibility of death. This threatwas used to overcome the defendant's will, which is so "fundamentally unfair as to denydue process" (People v Tarsia, 50 NY2d at 11; see NY Const, art I,§ 6; CPL 60.45 [1], [2] [a]; People v Aveni, 100 AD3d at 238). Faced withthe threat of the death penalty, the defendant's ability to make a choice as to whether ornot to make a statement was severely undermined (see CPL 60.45 [2] [a]).
Although the interaction between the defendant and the FBI agent was relativelybrief, it can be inferred from the record that the FBI agent's threat was the catalyst thatprompted the defendant to admit to stabbing the victim. The defendant was interviewedat 3:20 p.m. and denied stabbing the victim at that time. At some point between 3:20 p.m.and 5:30 p.m., the FBI agent entered the interview room and threatened the defendantwith the possibility of facing the death penalty. The defendant then admitted to stabbingthe victim at approximately 5:30 p.m. This demonstrates that the FBI agent's threatplaced undue pressure on the defendant, which undermined his ability to make a choiceas to whether or not to make a statement (see CPL 60.45 [2] [a]).
The People have the burden of proving beyond a reasonable doubt that thedefendant's statements were voluntary (see People v Anderson, 42 NY2d at 38;People v Griffin, 81 AD3d743, 744 [2011]). In my opinion, the People failed to meet that burden. Accordingly,in my view, the hearing court erred in denying that branch of the defendant's omnibusmotion which was to suppress the above-mentioned statements to law enforcementofficials, specifically, the defendant's admission made in the interview room atapproximately 5:30 p.m. on June 15, 2009, and the videotaped statement made at 7:00p.m. that evening. Consequently, I vote to reverse the judgment, and grant that branch ofthe defendant's omnibus motion which was to suppress the above-mentioned statementsto law enforcement officials.