| People v Thomas R.O. |
| 2016 NY Slip Op 01086 [136 AD3d 1400] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Thomas R.O., Appellant. (Appeal No.1.) |
Frank Policelli, Utica, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered August 20, 2013. The judgment convicted defendant, upon his plea of guilty, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is reversed as a matter ofdiscretion in the interest of justice, the conviction is vacated, defendant is adjudicated ayouthful offender, and the matter is remitted to Oneida County Court for sentencing.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of burglary in the second degree (Penal Law§ 140.25 [2]) and, in appeal No. 2, he appeals from a judgment convictinghim upon his plea of guilty of robbery in the first degree (§ 160.15 [3]).County Court sentenced defendant to concurrent terms of incarceration, the greater ofwhich is a determinate term of eight years and a period of postrelease supervision of fiveyears.
At the outset, with respect to both appeals, we agree with defendant that his waiverof the right to appeal is invalid. Before this Court may enforce a waiver of the right toappeal, we must examine the record "to ensure that the waiver was voluntary, knowingand intelligent" (People v Callahan, 80 NY2d 273, 283 [1992]; see People vSeaberg, 74 NY2d 1, 11 [1989]). "It is the trial court's responsibility, 'in the firstinstance,' to determine 'whether a particular [appellate] waiver satisfies theserequirements' " (Peoplev Bradshaw, 18 NY3d 257, 264 [2011], quoting Callahan, 80 NY2d at280). In making that determination, the court must consider "all the relevant facts andcircumstances surrounding the waiver, including the nature and terms of the agreementand the age, experience and background of the accused" (Seaberg, 74 NY2d at11). Further, while " 'a trial court need not engage in any particular litany' orcatechism in satisfying itself that a defendant has entered a knowing, intelligent andvoluntary appeal waiver, [it] 'must make certain that a defendant's understanding' of thewaiver, along with the other 'terms and conditions of a plea agreement is evident on theface of the record' " (Bradshaw, 18 NY3d at 265, quoting People v Lopez, 6 NY3d248, 256 [2006]).
Here, defendant was 19 years old at the time of the plea proceeding and had no priorexperience with the criminal justice system. In addition, as the court noted during theplea proceeding, defendant had a history of mental illness and psychiatrichospitalizations. With respect to the waiver of the right to appeal, the court adviseddefendant that it was a condition of the plea, and defendant stated that he understood.Immediately thereafter, however, defendant engaged the court in rambling andincoherent questioning concerning his sentence and doctors. Following that exchange,the court stated to defendant that it felt "like [they were] going over and over and overthe same thing," and that defendant was "hearing, but [he was] not understanding."Recognizing that the waiver of the right to appeal was under consideration when [*2]defendant initiated that exchange, the court returned to thatsubject, asking defendant simply if he agreed to give up his right to appeal in exchangefor the agreed-upon sentence, and defendant replied, "Yes."
In view of defendant's particular circumstances, i.e., his youth, inexperience, andhistory of mental illness, along with his statements during the plea proceeding, weconclude that defendant's understanding of the waiver of the right to appeal is not evidenton the face of the record, and that the waiver is invalid. In reaching that conclusion, wenote that the same oral colloquy may have been adequate in other circumstances for adefendant of a different "age, experience and background" (Seaberg, 74 NY2d at11). "[T]he same or similar oral colloquy . . . can produce an appeal waiverthat is valid as to one defendant and invalid as to another defendant" (People v Brown, 122 AD3d133, 143 [2014]). Here, however, we "cannot be certain that . . .defendant comprehended the nature of the waiver of appellate rights" (Lopez, 6NY3d at 256). Review of defendant's challenge to the denial of his application foryouthful offender status is therefore not foreclosed by the waiver of the right toappeal.
We agree with defendant's contention in both appeals that he should be affordedyouthful offender status. It is undisputed that defendant, who was between the ages of 16and 19 when the crimes were committed, is eligible for youthful offender treatment underCPL 720.10 (1) and (2) (seePeople v Rudolph, 21 NY3d 497, 500 [2013]). In determining whether to affordsuch treatment to a defendant, a court must consider "the gravity of the crime and mannerin which it was committed, mitigating circumstances, defendant's prior criminal record,prior acts of violence, recommendations in the presentence reports, defendant'sreputation, the level of cooperation with authorities, defendant's attitude toward societyand respect for the law, and the prospects for rehabilitation and hope for a futureconstructive life" (People v Cruickshank, 105 AD2d 325, 334 [1985], affdsub nom. People v Dawn Maria C., 67 NY2d 625 [1986]; see People vShrubsall, 167 AD2d 929, 930 [1990]).
In our view, the only factor weighing against affording defendant youthful offendertreatment here is the seriousness of the crimes (see Shrubsall, 167 AD2d at 930;Cruickshank, 105 AD2d at 335). At the time he committed the crimes, defendanthad no criminal record or history of violence (see People v Amir W., 107 AD3d 1639, 1641 [2013]). Themost significant mitigating circumstance here, defendant's history of mental illness, isdetailed in the presentence report (PSR), a memorandum from the Center for CommunityAlternatives (CCA), and reports prepared by a psychologist and psychiatrist. All of thosedocuments indicate that, at the time the crimes were committed, defendant suffered, interalia, from bipolar disorder, which had been misdiagnosed and inappropriately treatedwith medication that exacerbated defendant's manic symptoms. The CCA memorandumfurther states that defendant's behavior during the period between the crimes "is anaberration from his character and can be directly linked to his mental illness." Thatstatement was echoed in numerous letters submitted on defendant's behalf from membersof the community. The CCA memorandum states, in addition, that defendant hasaccepted responsibility for his actions and expressed genuine remorse for the effect of hiscriminal conduct on the victims, and concludes that, with appropriate treatment,defendant has the capacity for a productive and law-abiding future. Finally, both the PSRand CCA memorandum recommend youthful offender treatment (see id. at1641).
Although we do not conclude, after weighing the appropriate factors, that the courtabused its discretion in denying defendant youthful offender status, we neverthelesschoose to exercise our discretion in the interest of justice by reversing the judgments,vacating the convictions, and adjudicating defendant a youthful offender, and we remitthe matters to County Court for sentencing on the adjudications (seeCruickshank, 105 AD2d at 335; see generally People v Jeffrey VV., 88 AD3d 1159, 1160[2011]).
In view of our decision, we do not address defendant's remaining contention.
All concur except Carni and DeJoseph, JJ., who dissent and vote to affirm in thefollowing memorandum.
Carni and DeJoseph, JJ. (dissenting). We respectfully dissent and would affirm thejudgments of conviction inasmuch as we are constrained by the valid waiver of the rightto appeal. We conclude that the record establishes that the waiver was knowingly,voluntarily, and intelligently entered (see People v Lopez, 6 NY3d 248, 256 [2006]). Indeed, thecourt explicitly stated as "[o]ne other condition" of defendant's guilty plea that defendantwould be required to waive his right to appeal, thereby [*3]making clear to defendant " 'that the right to appeal[was] separate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People vDames, 122 AD3d 1336, 1336 [2014], lv denied 25 NY3d 1162 [2015];see People v Barber, 117AD3d 1430, 1430 [2014], lv denied 24 NY3d 1081 [2014]; People v Ware, 115 AD3d1235, 1235 [2014]). We further conclude that the record as a whole establishes thatdefendant understood that the waiver of the right to appeal meant that entry of thejudgments of conviction upon his plea of guilty would constitute the final disposition ofhis case. Present—Whalen, P.J., Peradotto, Carni, Lindley and DeJoseph, JJ.