| People v Swen |
| 2018 NY Slip Op 05949 [164 AD3d 926] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Swen, Appellant. |
Paul Skip Laisure, New York, NY (Lisa Napoli of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Alexander Fumelli of counsel),for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Richmond County (Stephen J. Rooney, J.), imposed December 3, 2015, upon his plea of guilty,on the ground that the sentence was excessive. Cross motion by the respondent to dismiss theappeal on the ground that it is barred by CPL 450.10 (1).
Ordered that the cross motion is denied; and it is further,
Ordered that the sentence is affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to onecount of criminal possession of a weapon in the third degree (Penal Law § 265.02[1]). He was sentenced, in accordance with the plea agreement, to an indeterminate term of oneto three years' imprisonment.
On appeal, the defendant contends that the sentence was excessive. The People cross-moveto dismiss the appeal on the ground that it is barred by CPL 450.10 (1). The People further arguethat review of the defendant's excessive sentence contention is precluded because he waived hisright to appeal.
CPL 450.10 (1) provides a criminal defendant with the right to appeal a judgment "unless theappeal is based solely upon the ground that a sentence was harsh or excessive when suchsentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceedthat which was agreed to by the defendant as a condition of the plea." As the Peopleacknowledge, the Court of Appeals has held that this provision is unconstitutional because "itimposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Courtin contravention of NY Constitution, article VI, § 4 (k)" (People v Pollenz,67 NY2d 264, 267-268 [1986]). Contrary to the People's contention, the subsequentdetermination of the Court of Appeals in People v LaFontaine (92 NY2d 470 [1998]) didnot implicitly overrule this aspect of People v Pollenz or otherwise affect theconstitutionality of CPL 450.10 (1) (see People v Walker, 164 AD3d 623 [2d Dept 2018]; People vLyons, 161 AD3d 1196 [2018]; cf. William C. Donnino, 2016 [*2]Supp Practice Commentaries, McKinney's Cons Laws of NY, CPL470.15). Accordingly, the People's cross motion to dismiss the defendant's appeal must bedenied.
However, the People are correct that the defendant's valid waiver of his right to appealprecludes review of his contention that his sentence was excessive. A waiver of the right toappeal "is effective only so long as the record demonstrates that it was made knowingly,intelligently and voluntarily" (People vLopez, 6 NY3d 248, 256 [2006]; see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Brown, 122 AD3d 133,136 [2014]). Although the Court of Appeals has "repeatedly observed that there is no mandatorylitany that must be used in order to obtain a valid waiver of appellate rights" (People v Johnson, 14 NY3d 483,486 [2010]), "[t]he best way to ensure that the record reflects that the right is known andintentionally relinquished by the defendant is to fully explain to the defendant, on the record, thenature of the right to appeal and the consequences of waiving it" (People v Brown, 122AD3d at 142; see People vRocchino, 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;see People v Spitzer, 163 AD3d591 [2d Dept 2018]). "[A] defendant should [also] receive an explanation of the nature ofthe right to appeal, which essentially advises that this right entails the opportunity to argue,before a higher court, any issues pertaining to the defendant's conviction and sentence and tohave that higher court decide whether the conviction or sentence should be set aside based uponany of those issues . . . [and] that appellate counsel will be appointed in the eventthat he or she were indigent" (People v Brown, 122 AD3d at 144; see People v Spitzer, 163 AD3d591 [2018]). Finally, "trial courts should then explain the consequences of waiving the rightto appeal, i.e., that the conviction and sentence will not receive any further review, and shall befinal" (People v Brown, 122 AD3d at 144; see People v Spitzer, 163 AD3d 591 [2018]).
Here, the record of the plea proceeding demonstrates that the defendant understood that theappeal waiver was separate and distinct from those rights automatically forfeited upon a plea ofguilty and that the defendant was voluntarily relinquishing that right in consideration for thepromised sentence (see People vSanders, 25 NY3d 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 vSpitzer, 163 AD3d 591[2018]; People v Rocchino, 153 AD3d 1284 [2017]; People v Stiles, 143 AD3d 747,747 [2016]; People vRomero-Flores, 128 AD3d 1102, 1102 [2015]; People v McRae, 123 AD3d 848, 848-849 [2014]; see alsoPeople v Brown, 122 AD3d at 144). On the record presented, we conclude that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see generally People vBradshaw, 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, thedefendant's valid waiver of his right to appeal precludes review of his contention that thesentence imposed was excessive (see People v Hardy, 120 AD3d 1358, 1358 [2014]; People v Arteev, 120 AD3d 1255,1255 [2014]; People v Alexander,104 AD3d 862, 862 [2013]). Scheinkman, P.J., Austin, Miller, Hinds-Radix and Maltese,JJ., concur.