| People v Spitzer |
| 2018 NY Slip Op 05062 [163 AD3d 591] |
| July 5, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Spitzer, Appellant. |
Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan ofcounsel; Ruby D. Andrade on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (William Miller, J.), imposed January 11, 2016, upon his plea of guilty, on theground that the sentence was excessive.
Ordered that the sentence is affirmed.
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 248, 256 [2006]; 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" (People v Johnson,14 NY3d 483, 486 [2010]), "[t]he best way to ensure that the record reflects that the right isknown and intentionally relinquished by the defendant is to fully explain to the defendant, on therecord, the nature of the right to appeal and the consequences of waiving it" (People vBrown, 122 AD3d at 142; seePeople v Rocchino, 153 AD3d 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.).
Here, contrary to the defendant's contention, the record of the plea proceeding demonstratesthat the defendant understood that the appeal waiver was separate and distinct from those rightsautomatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishingthat right in consideration for the promised sentence (see People v Sanders, 25 NY3d[*2]337, 341 [2015]; People v Byrd, 100 AD3d 1013, 1013 [2012]; see also People vBrown, 122 AD3d at 144). Furthermore, the record of the plea proceeding demonstrates thatthe defendant received an explanation of the nature of the right to appeal and the consequences ofwaiving that right (see People vRocchino, 153 AD3d 1284 [2017]; People v Stiles, 143 AD3d 747, 747 [2016]; People v Romero-Flores, 128 AD3d1102, 1102 [2015]; People vMcRae, 123 AD3d 848, 848-849 [2014]; see also People v Brown, 122 AD3d at144). We conclude that the defendant knowingly, voluntarily, and intelligently waived his rightto appeal (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; People v Hidalgo, 91 NY2d 733, 735[1998]). Accordingly, the defendant's valid waiver of his right to appeal precludes review of hiscontention that the sentence of probation imposed was excessive (see People v Hardy,120 AD3d 1358, 1358 [2014]; People vArteev, 120 AD3d 1255, 1255 [2014]; People v Alexander, 104 AD3d 862, 862 [2013]). Mastro, J.P.,Miller, LaSalle and Brathwaite Nelson, JJ., concur.