| People v Santiago |
| 2014 NY Slip Op 05493 [119 AD3d 484] |
| July 24, 2014 |
| Appellate Division, First Department |
[*1]
| 1 The People of the State of New York,Respondent, v Natalia Santiago, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Lauren Springer ofcounsel), for appellant.
Robert T. Johnson, District Attorney's Office, Bronx (Diane A. Shearer of counsel),for respondent.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered May 10,2012, convicting defendant, upon her plea of guilty, of two counts of attempted robberyin the second degree, and sentencing her to concurrent terms of three years, to befollowed by three years of postrelease supervision, unanimously affirmed.
We find that defendant's purported waiver of her right to appeal was invalidinasmuch as the court did not tell defendant that her right to appeal was separate anddistinct from her trial rights, which were automatically forfeited upon her plea of guilty(see People v Lopez, 6NY3d 248, 256-257 [2006]; People v Williams, 59 AD3d 339, 341 [1st Dept 2009],lv denied 12 NY3d 861 [2009]). Rather, the court asserted that "in the specificcircumstances of this particular case" she was agreeing "not to make an appeal" (see People v Oquendo, 105AD3d 447 [1st Dept 2013], lv denied 21 NY3d 1007 [2013] [the defendant'spurported waiver of right to appeal was invalid where the court failed to ensureadequately that he understood that the right to appeal was separate and distinct fromthose rights automatically forfeited upon a guilty plea]).
In addition, we agree with defendant that the clause in the waiver agreement thatpurportedly treats the filing of a notice of appeal by defendant as a motion to vacate thejudgment to be unenforceable. Specifically, the waiver form included the followingclause: "If the defendant or the defendant's attorney files a notice of appeal that is notlimited by a statement to the effect that the appeal is solely with respect to aconstitutional speedy trial claim or legality of the sentence, they agree that the DistrictAttorney and or Court may deemed such filing to be a motion by the defendant to vacatethe conviction and sentence, and will result, upon the application and consent of theDistrict Attorney, in the plea and sentence being vacated and this indictment beingrestored to its pre-pleading status." This clause is unenforceable because there is nostatutory authority to vacate a judgment under these circumstances (CPL 440.10;People v Moquin, 77 NY2d 449, 452 [1991]; see also Matter of Kisloff vCovington, 73 NY2d 445, 450 [1989] [confining the court's authority to vacate aplea [*2]or sentence after judgment has been entered overthe defendant's objection to clerical errors and fraud]).
Further, this language discourages defendants from filing notices of appeal evenwhen they have claims that cannot be waived, such as one concerning the lawfulness ofthe waiver or the plea agreement itself. "[A]n agreement to waive appeal does notforeclose appellate review in all situations" (People v Callahan, 80 NY2d 273,284 [1992]). If the agreement to waive were itself sufficient to foreclose appellatereview, "the court would then be deprived of the very jurisdictional predicate it needs asa vehicle for reviewing the issues that survive the waiver" (id.). The language inthe written waiver, in essence, purports to prevent appellate claims that have been foundby the courts to be "unwaivable" precisely because of their constitutional import (seePeople v Seaberg, 74 NY2d 1, 9 [1989] [finding unwaivable interests implicating"society's interest in the integrity of (the) criminal process," such as the defendant'scompetency or the knowing nature of the plea]).
Although we find that defendant's waiver of the right to appeal was invalid, weperceive no basis for reducing the sentence. Concur—Acosta, J.P., Moskowitz,Freedman and Feinman, JJ.