| People v Griffin |
| 2014 NY Slip Op 04960 [119 AD3d 605] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Farquan Griffin, Appellant. |
Lynn W.L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, LoriGlachman, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered December 26, 2006, convicting him of attempted robbery in thefirst degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Kings County, to afford the defendant an opportunity to withdraw hisplea of guilty.
On October 26, 2006, the defendant pleaded guilty to attempted robbery in the firstdegree to satisfy his indictment. He was promised a sentence of an indeterminate term ofimprisonment of 16 years to life, to run concurrently with a sentence of an indeterminateterm of imprisonment of 20 years to life previously imposed in New York County. Thetrial court noted that, although an indeterminate term of imprisonment of 16 years to lifewas a "lengthy sentence," it was to run concurrently to the sentence he was alreadyserving, and was less time than the sentence he was already serving. The plea agreementdid not " 'spell out . . . the consequences that will follow' "in the event that the New York County conviction were vacated (People v Rowland, 8 NY3d342, 345 [2007], quoting People v Pichardo, 1 NY3d 126, 130 [2003]).
The court advised the defendant that he was agreeing to give up his right to appealfrom the conviction, and would have a right to appeal if he believed any legal errors weremade or if the sentence was illegal or excessive, and would be entitled to an attorney forhis appeal free of charge if he could not afford one. The court then asked the defendantto "go over" the written waiver with his attorney and "sign it, please." After a pause inthe proceedings, the trial court stated "Let the record reflect the waiver has been signed."However, there is no statement from the defendant on the record in reference to thewaiver of his right to appeal.
The defendant's waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257, 267 [2011]; People v Bressard, 112 AD3d 988 [2013]; People v Nicholson, 101 AD3d904 [2012]; People vPelaez, 100 AD3d 803 [2012]; People v Grant, 83 AD3d 862 [2011]). In any event, achallenge to the [*2]voluntariness of a plea of guilty,including a claim that the plea was not voluntary because it was based upon a promisewhich was not fulfilled, survives a waiver of the right to appeal (see People vSeaberg, 74 NY2d 1, 10 [1989]; People v Murphy, 114 AD3d 704 [2014]; People v Ballinger, 12 AD3d686, 687 [2004]).
The defendant received the promised sentence of an indeterminate term ofimprisonment of 16 years to life, to run concurrently with the sentence of anindeterminate term of imprisonment of 20 years to life imposed in New York County. In2011, the defendant's conviction in New York County was reversed, and that matter wasremitted to the Supreme Court, New York County, for further proceedings (see People v Griffin, 92 AD3d1 [2011], affd 20 NY3d 626 [2013]). The defendant contends that, since theNew York County conviction was reversed on appeal, the instant judgment should bereversed and the matter remitted to the Supreme Court, Kings County, to give thedefendant an opportunity to withdraw his plea of guilty.
Since the defendant pleaded guilty with the understanding that he would receive asentence concurrent with the sentence imposed upon his conviction in New YorkCounty, he should be afforded an opportunity to withdraw his plea of guilty (seePeople v Williams, 17 NY3d 834 [2011]; People v Taylor, 80 NY2d 1, 15[1992]; People v Boston, 75 NY2d 585 [1990]; People v Clark, 45 NY2d432, 440 [1978]; People vPuntervold, 60 AD3d 1090 [2009]; People v Antoniou, 59 AD3d 805, 806 [2009]; People vCruz, 225 AD2d 790, 791 [1996]). Accordingly, the judgment appealed from mustbe reversed, and the matter remitted to the Supreme Court, Kings County, to afford thedefendant an opportunity to withdraw his plea of guilty. Skelos, J.P., Dillon, Maltese andBarros, JJ., concur.