| People v Latham |
| 2018 NY Slip Op 04753 [162 AD3d 1068] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Latham, Appellant. |
Paul Skip Laisure, New York, NY (Samuel Barr of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall ofcounsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Cassandra Mullen, J.), imposed September 21, 2016, upon his plea of guilty, onthe ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant pleaded guilty to one count of attempted criminal possession of a weapon inthe third degree (see Penal Law §§ 110.00, 265.02 [1]). He wassentenced, as a second felony offender, to an indeterminate term of imprisonment of two to fouryears. On appeal, the defendant contends that his sentence of imprisonment was excessive. ThePeople argue that the defendant's contention is precluded by the defendant's waiver of his right toappeal.
A defendant who has validly waived the right to appeal cannot invoke this Court's interest ofjustice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d 248, 255 [2006]). Here, however, thisCourt is not precluded from exercising its interest of justice jurisdiction because the defendant'spurported waiver of his right to appeal was invalid.
A waiver of the right to appeal "is effective only so long as the record demonstrates that itwas made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d at 256; see People v Bradshaw, 18 NY3d257, 264 [2011]; People vBrown, 122 AD3d 133, 136 [2014]). Although the Court of Appeals has repeatedlyobserved that there is no mandatory litany that must be used in order to obtain a valid waiver ofappellate rights (see People vJohnson, 14 NY3d 483, 486 [2010]), "[t]he best way to ensure that the record reflectsthat the right is known and intentionally relinquished by the defendant is to fully explain to thedefendant, on the record, the nature of the right to appeal and the consequences of waiving it"(People v Brown, 122 AD3d at 142; see People v Rocchino, 153 AD3d [*2]1284 [2017]; People v Blackwood, 148 AD3d 716, 716 [2017]).
"[A] thorough explanation should include an advisement that, while a defendant ordinarilyretains the right to appeal even after he or she pleads guilty, the defendant is being asked, as acondition of the plea agreement, to waive that right" (People v Brown, 122 AD3d at 144)."[A] defendant should [also] . . . receive an explanation of the nature of the right toappeal, which essentially advises that this right entails the opportunity to argue, before a highercourt, any issues pertaining to the defendant's conviction and sentence and to have that highercourt decide whether the conviction or sentence should be set aside based upon any of thoseissues . . . [and] that appellate counsel will be appointed in the event that he or shewere indigent" (id.). Finally, "trial courts should then explain the consequences ofwaiving the right to appeal, i.e., that the conviction and sentence will not receive any furtherreview, and shall be final" (id.).
The Supreme Court did not provide the defendant with an explanation of the nature of theright to appeal or explain the consequences of waiving that right. In addition, nothing in therecord shows that the defendant understood the distinction between the right to appeal and othertrial rights forfeited incident to his plea of guilty (see People v Santeramo, 153 AD3d 1286 [2017]; People v Black, 144 AD3d 935,935-936 [2016]; People v Pacheco,138 AD3d 1035, 1036 [2016]; People v Gordon, 127 AD3d 1230, 1230 [2015]; People v Cantarero, 123 AD3d841, 841 [2014]; People vBennett, 115 AD3d 973, 973 [2014]). While the defendant was represented by counselduring the plea proceedings, counsel did not participate during the proceedings other than toacknowledge to the court that he was the defendant's attorney, and counsel did not sign thedefendant's written appeal waiver form. Furthermore, although the record on appeal reflects thatthe defendant signed the written appeal waiver form, a written waiver "is not a completesubstitute for an on-the-record explanation of the nature of the right to appeal" (People v Bradshaw, 76 AD3d 566,569 [2010], affd 18 NY3d 257 [2011]; see People v Cuevas-Alcantara, 136 AD3dat 650; People v Brown, 122 AD3d at 138-139; People v Keiser, 100 AD3d 927, 928 [2012]). The court's colloquyamounted to nothing more than a simple confirmation that the defendant signed the waiver and aconclusory statement that the defendant understood the waiver or was executing it knowingly andvoluntarily (see People vBurnett-Hicks, 133 AD3d 773, 774 [2015]; People v Cantarero, 123 AD3d at841-842; People v Brown, 122 AD3d at 140). Under the circumstances here, we concludethat the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Brown, 122 AD3d133 [2014]; see generally People v Bradshaw, 18 NY3d at 264-267; People v Ramos, 7 NY3d 737, 738[2006]; People v Lopez, 6 NY3d at 255).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Miller, Duffy and LaSalle, JJ.,concur.