| People v Fortier |
| 2015 NY Slip Op 05693 [130 AD3d 642] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Fortier, Appellant. |
Mark Diamond, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Nelson, J.), rendered July 1, 2014, convicting him of burglary in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
"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 Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]; People v Brown, 122 AD3d 133, 136 [2014]). "Anappellate waiver meets this standard when a defendant has 'a full appreciation of theconsequences' of such waiver" (People v Bradshaw, 18 NY3d at 264, quotingPeople v Seaberg, 74 NY2d 1, 11 [1989]; see People v Elmer, 19 NY3d 501, 510 [2012]; Peoplev Brown, 122 AD3d at 136).
Further, an appeal waiver is the intentional and voluntary relinquishment orabandonment of "a known right that would otherwise survive a guilty plea" (People vLopez, 6 NY3d at 257; People v Brown, 122 AD3d at 137). It is theresponsibility of the judge presiding over the plea and waiver to make it clear to thedefendant that an appeal waiver " 'is separate and distinct from those rightsautomatically forfeited upon a plea of guilty' " (People v Bradshaw, 18NY3d at 264, quoting People v Lopez, 6 NY3d at 256; see People vBrown, 122 AD3d at 137). "Thus, an appeal waiver is not valid where, for example,the court lumps the waiver of the right to appeal in with 'the panoply of trial rightsautomatically forfeited upon pleading guilty,' such as by misadvising the defendant:'[W]hen you plead guilty you waive your right to appeal' " (People vBrown, 122 AD3d at 137, quoting People v Lopez, 6 NY3d at 257).
Here, at the plea proceeding, the County Court advised the defendant that, "[b]ypleading guilty, sir, you waive, you give up your right—by pleading guilty you'retelling everyone in the world that you are waiving and giving up your right to seekappellate review of decisions by Judges on your case." Under these circumstances,notwithstanding the defendant's execution of a written waiver, the purported waiver ofthe right to appeal was invalid and, thus, does not preclude review of his claim that hissentence was excessive. However, the sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]).
[*2] The defendant's contention that the final order of protection is invalid because theCounty Court failed to articulate on the record its reasons for issuing the order pursuantto CPL 530.13 (4) is unpreserved for appellate review, since the defendant did not raisethis issue at sentencing or move to amend the final order of protection on this ground(see CPL 470.05 [2]; People v Nieves, 2 NY3d 310, 316-318 [2004]; People v Sweeney, 106 AD3d841, 842 [2013]; People vReynolds, 85 AD3d 825 [2011]; People v Decker, 77 AD3d 675 [2010]). Rivera, J.P.,Skelos, Roman and LaSalle, JJ., concur.