| People v Bryant |
| 2016 NY Slip Op 01427 [137 AD3d 401] |
| March 1, 2016 |
| Appellate Division, First Department |
[*1](March 1, 2016)
| The People of the State of New York,Respondent, v Jeffrey Bryant, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 17,2014, convicting defendant, upon his plea of guilty, of four counts of grand larceny inthe fourth degree, and sentencing him to four consecutive terms of 1 to 3 years, modified,as a matter of discretion in the interest of justice, to the extent of directing that thesentence for the conviction under count three of the indictment be served concurrentlywith the other sentences, and otherwise affirmed.
We first find that defendant's waiver of his right to appeal was invalid. A waiver ofthe right to appeal is not effective unless it is apparent from the record that it was madeknowingly, intelligently and voluntarily (People v Lopez, 6 NY3d 248, 256 [2006]). For a waiver tobe effective, the record must demonstrate that the defendant has a full appreciation of theconsequences of the waiver (People v Bradshaw, 18 NY3d 257 [2011]), including anunderstanding "that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256). Similarly,a waiver is not effective if the "trial court characterizes an appeal as one of many rightsautomatically extinguished upon entry of a guilty plea" (id.).
Here, the court never adequately explained the nature of the waiver, the rights thedefendant would be waiving, or that the right to appeal was separate and distinct from therights automatically forfeited upon a plea of guilty. Rather, the court merely stated that"as a part of this"—that is, as part of the guilty plea—defendant waswaiving his right to appeal and thus, that the convictions would be final because noappellate court would review them. Despite our dissenting colleague's suggestionotherwise, the problem with the waiver's validity is not that there was "some ambiguity inthe court's colloquy." Rather, by using the phrase "as a part of this," the trial courtexpressly undercut the principle that a defendant must understand his waiver of appeal tobe distinct from the rights forfeited upon a guilty plea (see People v McCree, 113AD3d 557, 557-558 [1st Dept 2014]; People v Williams, 59 AD3d 339, 341 [1st Dept 2009],lv denied 12 NY3d 861 [2009]).
Further, the dissent places undue emphasis on the existence of the written waiver. Aswe have held, the written waiver that defendant signed was no substitute for anon-the-record explanation of the nature of the right to appeal (see People v Oquendo, 105AD3d 447 [1st Dept 2013], lv denied 21 NY3d 1007 [2013]). Thisconclusion holds especially true here, where the record does not make clear whendefendant signed the waiver. Although the waiver itself states that defendant signed thewaiver only "after being advised by the Court," it is not evident from the record whetherdefendant signed the waiver before the colloquy regarding his right to appeal, or whetherhe signed it after. Accordingly, the waiver was invalid and unenforceable (Lopez,6 NY3d at 256; People vSantiago, 119 AD3d 484 [1st Dept 2014]).
After giving due consideration to the defendant's particular circumstances, weexercise our discretion to modify the sentence to the extent indicated (see People vFarrar, 52 NY2d 302, 305 [1981]; Penal Law § 1.05 [6]).Concur—Renwick, Moskowitz, Manzanet-Daniels and Feinman, JJ.
Tom, J.P., dissents in a memorandum as follows: The record contradicts themajority's conclusion that defendant was not properly apprised of the implications ofwaiving his right to appeal. Thus, defendant's valid waiver of the right to appealforecloses appellate review of his excessive sentence claim (see People v Lopez, 6 NY3d248, 256-257 [2006]).
The record discloses that upon accepting defendant's guilty plea, the court, in alengthy plea allocution, engaged in the following colloquy:
"THE COURT: All right. Sir, you understand that also as a part of this you arewaiving your right to appeal. You understand that this conviction, or these convictionswill be final, that a court will not review what we have done here, other than someresidual rights that remain?
"Do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Have you gone over that with your attorney?
"THE DEFENDANT: Yes.
"THE COURT: There is a document entitled waiver of appeal. I see that youexecuted that document. Do you have any questions about it?
"THE DEFENDANT: No."
This language tracks the same colloquy that provided for a valid waiver in Peoplev Nicholson, one of the cases consolidated under People v Lopez (6 NY3d 248, 254-255 [2006]), and, withthe written waiver in this case, even exceeds Nicholson. In the written waiver,signed both by defendant and his attorney, defendant expressly acknowledges as follows:"I understand that the right to appeal is separate and distinct from other rightsautomatically forfeited upon a plea of guilty." Further, "I also understand that by waivingmy right to appeal, I am giving up the right to raise on appeal a number of claims that Icould otherwise raise even after a guilty plea. In particular, I understand that I amwaiving my right to ask the Appellate Division to review the terms of the plea and reducemy sentence, and my right to appeal the denial of any suppression motion I made."Finally, "I execute and sign this waiver knowingly, intelligently and voluntarily" and"have had a full opportunity to discuss these matters with my attorney and any questions Imay have had have been answered to my satisfaction." After defendant acknowledgedthat he had gone over the terms of the document with his attorney, the court asked if hehad any questions regarding the waiver, to which defendant responded, "No." I concludethat this colloquy is clearly adequate under Nicholson for the enforcement of thewaiver of appeal by defendant.
A defendant who has validly waived his right of appeal may not invoke this Court'sinterest-of-justice jurisdiction to reduce a bargained-for sentence (People v Lopez, 6 NY3d248, 255-256 [2006]), particularly where the waiver is documented by a writing. "Bypleading guilty and waiving the right to appeal, a defendant has forgone review of theterms of the plea, including harshness or excessiveness of the sentence" (id. at256). Waiver will be enforced "so long as the record demonstrates that it was madeknowingly, intelligently and voluntarily" (id., citing People v Calvi, 89NY2d 868, 871 [1996]). It is essential that a defendant understand that [*2]the right to appeal is distinct from "the panoply of trialrights automatically forfeited upon pleading guilty" (6 NY3d at 257). While thisexplanation may be given verbally by the court, it is "even better to secure a writtenwaiver including such explanation (as in Lopez)" (id.).
Here, defendant acknowledged before the Court that he fully understood the terms ofthe written waiver after consulting with his attorney. Contrary to the majority's position,even if there is some ambiguity in the court's colloquy, the waiver is still valid ifdefendant also executed a detailed written waiver (People v Ramos, 7 NY3d 737 [2006]), since "the writtenwaiver ensured defendant understood that in addition to the rights he was giving up bypleading guilty, he was separately giving up his right to appeal as a bargained-forcondition of the plea" (People vCarvajal, 68 AD3d 443, 443 [1st Dept 2009], lv denied 14 NY3d 799[2010]).
It is clear from the Court of Appeals' decision in Lopez that a written waiverincorporating the explanation that the right to appeal is a distinct right fulfills therequirement to demonstrate that waiver of such right was knowing, intelligent andvoluntary. Thus, the defendant cannot "invoke the court's review power" to disturb theterms of the negotiated plea agreement (Lopez, 6 NY3d at 262, 256 [fairness andfinality are promoted only if parties to a plea agreement are confident that "anagreed-upon sentence will not be disturbed as a discretionary matter"], citing People vSeaberg, 74 NY2d 1, 10 [1989] ["the public interest concerns underlying pleabargains generally are served by enforcing waivers of the right to appeal"]; People vJenkins, 138 AD3d 102 [1st Dept 2016] ). Norcan we "sua sponte" reduce the sentence (People v Jenkins; see also People v Romano, 45AD3d 910, 913-914 [3d Dept 2007], lv denied 10 NY3d 770 [2008]).
In short, "[h]aving received the benefit of his bargain, defendant should be bound byits terms" (People v Lopez, 190 AD2d 545, 545 [1st Dept 1993]). This recordprovides no compelling evidence of special circumstances to the contrary.
Accordingly, the judgment should be affirmed in all respects.