| People v Alston |
| 2018 NY Slip Op 05327 [163 AD3d 843] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Alston, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort 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 (John T. Hecht, J.), imposed April 4, 2016, upon his plea of guilty, on the groundthat the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant pleaded guilty to two counts of robbery in the second degree (seePenal Law § 160.10 [2] [b]). He was sentenced to a determinate term of six years'imprisonment on each count. The Supreme Court directed the sentences of imprisonment to runconcurrently. On appeal, the defendant contends that his sentences of imprisonment wereexcessive. The People argue that the defendant's contention is precluded by his waiver of hisright to appeal.
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" (People v Johnson,14 NY3d 483, 486 [2010]), "[t]he best way [*2]to ensure thatthe record reflects that the right is known and intentionally relinquished by the defendant is tofully explain to the defendant, on the record, the nature of the right to appeal and theconsequences of waiving it" (People v Brown, 122 AD3d at 142; see People v Rocchino, 153 AD3d1284 [2017]; People vBlackwood, 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;see People v Medina, 161 AD3d778 [2018]). "[A] defendant should [also] . . . receive an explanation of thenature of the right to appeal, which essentially advises that this right entails the opportunity toargue, before a higher court, any issues pertaining to the defendant's conviction and sentence andto have that higher court decide whether the conviction or sentence should be set aside basedupon any of those issues . . . [and] that appellate counsel will be appointed in theevent that he or she were indigent" (People v Brown, 122 AD3d at 144). Finally, "trialcourts should then explain the consequences of waiving the right to appeal, i.e., that theconviction and sentence will not receive any further review, and shall be final" (id.).
Here, the record does not demonstrate that the defendant understood the nature of the right toappeal and the consequences of waiving it (see People v Etienne, 152 AD3d 790, 790 [2017]; People v Gonzalez, 150 AD3d1024, 1025 [2017]; People v De LaRosa, 148 AD3d 927, 927 [2017]; People v Cuevas-Alcantara, 136 AD3d 650, 650 [2016]). TheSupreme Court did not provide the defendant with an adequate explanation of the nature of theright to appeal or the consequences of waiving that right (cf. People v Brown, 122 AD3dat 144). The court failed to advise the defendant that he would ordinarily retain the right to appealeven after pleading guilty, but that in this case he was being asked to voluntarilyrelinquish that right as a condition of the plea agreement (cf. People v Brown, 122 AD3dat 144). Moreover, the court never elicited an acknowledgment that the defendant was voluntarilywaiving his right to appeal (see People vSanteramo, 153 AD3d 1286 [2017]; People v Guarchaj, 122 AD3d 878, 879 [2014]; People v Pelaez, 100 AD3d 803,803 [2012]).
Although the record on appeal reflects that the defendant signed a written appeal waiverform, a written waiver "is not a complete substitute for an on-the-record explanation of the natureof the right to appeal" (People vBradshaw, 76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011]; see People v Cuevas-Alcantara,136 AD3d at 650; People v Brown, 122 AD3d at 138-139; People v Keiser, 100 AD3d 927,928 [2012]). While the written waiver in this case "expressly provided that the court hadinformed the defendant about the nature of his right to appeal, that representation is contradictedby the oral colloquy" (People v Brown, 122 AD3d at 145). Rather, the record reflects thatthe Supreme Court's colloquy regarding the written waiver amounted to nothing more than "asimple confirmation that the defendant signed [it]" (id. at 140; see People v Burnett-Hicks, 133 AD3d773, 774 [2015]; People vCantarero, 123 AD3d 841, 841-842 [2014]). The transcript of the plea proceedingsshows that the court did not ascertain on the record whether the defendant had read the writtenwaiver or discussed it with defense counsel, or whether he was even aware of its contents (see People v Santeramo, 153 AD3d1286 [2017]; People v Black,144 AD3d 935, 936 [2016]; Peoplev Pacheco, 138 AD3d 1035, 1036 [2016]). 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 257, 264-267 [2011]; 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 [*3]excessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera,J.P., Miller, Duffy and LaSalle, JJ., concur.