| People v Johnson |
| 2016 NY Slip Op 05170 [140 AD3d 1188] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Laquin Johnson, Appellant. |
Gary E. Eisenberg, New City, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Jennifer Spencer andLaurie Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered December 11, 2014, convicting him of robbery in the first degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
"A waiver of the right to appeal may be elicited as a condition of a plea bargain" (People v Johnson, 14 NY3d483, 486 [2010]; see People v Seaberg, 74 NY2d 1, 5 [1989]). However,such a waiver "will not be enforced unless it was knowingly, intelligently and voluntarilymade" (People v Callahan, 80 NY2d 273, 280 [1992]; see People v Lopez, 6 NY3d248, 256 [2006]). For a waiver of the right to appeal to be valid, the defendant mustunderstand that a waiver of the right to appeal is distinguishable from a forfeiture ofcertain rights which occurs as a consequence of a plea of guilty, such as the right toremain silent, the right to confront one's accusers, and the right to a jury trial (seePeople v Lopez, 6 NY3d at 256; see also People v Gordon, 127 AD3d 1230, 1231 [2015];People v Cantarero, 123AD3d 841, 841 [2014]; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]; People v Mayo, 77 AD3d683, 684 [2010]).
Here, at the time that the defendant entered his plea of guilty, his attorney told theSupreme Court that he had informed the defendant, among other things, that "he has towaive his right to appeal." Defense counsel's indication to the defendant that waiving theright to appeal is mandatory rather than a right that could be voluntarily relinquished wasnot corrected by the court or the prosecutor (see e.g. People v Pelaez, 100 AD3d 803, 803 [2012]). Thelater allocution of the defendant with respect to the waiver of the right to appeal alsofailed to correct defense counsel's earlier misstatement (see People v Moyett, 7 NY3d892, 892-893 [2006]; People v Pelaez, 100 AD3d at 803; see also People v Salgado, 111AD3d 859, 859 [2013]). Accordingly, under these circumstances, the defendant'sappeal waiver was invalid (see People v Moyett, 7 NY3d at 892-893; Peoplev Pelaez, 100 AD3d at 803).
Nonetheless, there is nothing in the record to suggest that the defendant's plea ofguilty was not knowing, voluntary, and intelligent (see People v Bethune, 91 AD3d 966, 967 [2012];People v Smith, 306 AD2d 210, 211 [2003]; People v Montanez, 287AD2d 407, 408 [2001]; People v Sanchez, 284 AD2d [*2]137 [2001]; People v Anthony, 188 AD2d 477, 477[1992]; People v Empey, 141 AD2d 987, 988 [1988]). The defendant'scontention that the plea was rendered involuntary because the plea allocution wasprimarily conducted by the prosecutor is without merit. Here, the Supreme Courtconducted the initial voir dire and, to the extent that the prosecution directed questions tothe defendant as part of the allocution, the court supervised such voir dire and interjectedwith clarifications and questions to the defendant (see People v Fowler, 111 AD3d 958, 958 [2013];People v Bethune, 91 AD3d at 966-967; cf. People v Sanders, 25 NY3d 337 [2015]).
The defendant's remaining contention is without merit. Dillon, J.P., Dickerson,Cohen and Duffy, JJ., concur.