| People v Davis |
| 2018 NY Slip Op 05862 [164 AD3d 827] |
| August 22, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rashan Davis, Appellant. |
Paul Skip Laisure, New York, NY (Laura B. Indellicati of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher Blira-Koessler of counsel; Victoria Randall on the memorandum), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Dorothy Chin-Brandt, J.), imposed June 30, 2015, upon his plea of guilty, on theground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to onecount of attempted assault in the second degree (see Penal Law§§ 110.00, 120.05 [6]). The defendant received an indeterminate sentence oftwo to four years' imprisonment in accordance with the plea agreement. On appeal, the defendantcontends that his sentence of imprisonment was excessive. The People contend that thedefendant's argument is precluded by the defendant's waiver of his right to appeal and that, in anyevent, the defendant's sentence of incarceration was not excessive.
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" (id. 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 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]).
[*2] "[A] thorough explanation should include an advisementthat, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, thedefendant is being asked, as a condition of the plea agreement, to waive that right" (People vBrown, 122 AD3d at 144; seePeople v Medina, 161 AD3d 778 [2018]). "[A] defendant should [also] . . .receive an explanation of the nature of the right to appeal, which essentially advises that this rightentails the opportunity to argue, before a higher court, any issues pertaining to the defendant'sconviction and sentence and to have that higher court decide whether the conviction or sentenceshould be set aside based upon any of those issues . . . [and] that appellate counselwill be appointed in the event that he or she were indigent" (People v Brown, 122 AD3dat 144). Finally, "trial courts should then explain the consequences of waiving the right to appeal,i.e., that the conviction and sentence will not receive any further review, and shall be final"(id.).
Here, the Supreme Court's terse oral colloquy regarding the waiver of the right to appeal wasinsufficient, by itself, to demonstrate that the defendant understood the nature of the right toappeal (see People v Cortez, 160AD3d 893 [2018]; People vLaboy, 153 AD3d 1363 [2017]; People v Herring, 150 AD3d 1148 [2017]). Although the recordreflects that the defendant signed a more comprehensive written waiver and indicated that he"was aware of its contents" (People v Brown, 122 AD3d at 139 [internal quotation marksomitted]; see People v Bryant, 28NY3d 1094, 1096 [2016]), the defendant's subsequent statements to the court during the pleaproceeding revealed that he did not, in fact, understand the appeal waiver (cf. People v Foxworth, 161 AD3d1103 [2018]; People v Valerio,154 AD3d 887 [2017]; People vCalabrese, 153 AD3d 1268 [2017]; People v Oliveri, 151 AD3d 754 [2017]; People v English, 142 AD3d 1103[2016]). This confusion was consistent with the record evidence of the defendant's mental healthissues (cf. People v Walker, 151AD3d 1730, 1731 [2017]). Contrary to the People's contention, the court did not respond ina meaningful way to the defendant's confusion, as the court merely confirmed again that thedefendant had signed the written waiver before the court addressed other topics (cf. People v Leonard, 25 AD3d925, 925-926 [2006]). Under all of the circumstances, including the deficient oral colloquy,the defendant's demonstrated history of recent mental health issues, the confusion expressed bythe defendant on the record during the plea proceeding, and the court's failure to meaningfullyinquire into the defendant's confusion, we conclude that the record of the plea proceeding doesnot demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right toappeal (see People v Brown, 122AD3d 133 [2014]; see generally People v Bryant, 28 NY3d at 1096; People v Sanders, 25 NY3d 337,340-341 [2015]; 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]).
Nevertheless, contrary to the defendant's contention, the sentence of imprisonment imposedwas not excessive (see People v Suitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Dillon,Miller, Hinds-Radix and Iannacci, JJ., concur.