| People v Neilson |
| 2018 NY Slip Op 08509 [167 AD3d 779] |
| December 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leslie Neilson, Appellant. |
Michele Marte-Indzonka, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (William C. Ghee and Robert H.Middlemiss of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (NicholasDeRosa, J.), rendered May 19, 2017, convicting him of grand larceny in the third degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment 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]).
The County Court did not provide the defendant with an explanation of the nature of the rightto appeal or explain the consequences of waiving that right. Although the record on appealreflects that the defendant signed the written appeal waiver form, a written waiver "is not acomplete substitute 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 AD3d 650 [2016]). Moreover,"it will not be sufficient for the trial court to defer to the defendant's off-the-record conversationswith defense counsel by merely confirming with defense counsel that he or she has discussed thewaiver of the right to appeal with the defendant" (People v Brown, 122 AD3d at 141).Here, the court's limited colloquy amounted to nothing more than " 'a simpleconfirmation that the defendant signed the waiver and a conclusory statement that the defendantunderstood the waiver or was executing it knowingly and voluntarily' " (People v Burnett-Hicks, 133 AD3d773, 774 [2015], quoting People v Brown, 122 AD3d at 140; see People v Guniss, 160 AD3d895, 896 [2018]). Under these circumstances, we conclude that the defendant did notknowingly, voluntarily, and intelligently waive his right to appeal.
[*2] The defendant's claim of ineffective assistance of counselcannot be reviewed on direct appeal because it is based, in part, on matter outside the record, and,thus, constitutes a "mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Cassadean, 160 AD3d655, 656-657 [2018]; People vHili, 158 AD3d 647, 648 [2018]). In this case, it is not evident from the matterappearing on the record that the defendant was deprived of the effective assistance of counsel (see People v Ayala, 146 AD3d966, 967 [2017]; People vBarber, 133 AD3d 868, 872 [2015]). Since the defendant's claim of ineffectiveassistance cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Sanders, 148 AD3d846, 846 [2017]; People vCrosby, 133 AD3d 681, 682 [2015]; People v Martial, 125 AD3d 688, 689 [2015]; People v Freeman, 93 AD3d 805,806 [2012]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin imposing a sentence greater than what had been promised in the original plea agreement (see People v Smith, 160 AD3d664, 665 [2018]; People vHarris, 142 AD3d 557, 557-558 [2016]; People v Grant, 122 AD3d 767, 767 [2014]; People v Scott, 101 AD3d 1773,1774 [2012]). The court had specifically warned the defendant of the consequences of failing toappear for a presentence interview with the probation department, including the potentiallylonger sentence he faced. Nevertheless, the defendant failed to appear for his interview on theoriginally scheduled date due to a snowstorm, and did not appear on the rescheduled date becauseof purported transportation problems. Under the circumstances, the court was not bound by itsoriginal promise, and we agree with the court's imposition of an enhanced sentence (seePeople v Smith, 160 AD3d at 665; People v Nesbitt, 125 AD3d 1016, 1017 [2015]).
"Even though the court had a right to enhance the sentence, [this Court has] broad, plenarypower to modify an enhanced sentence that is harsh or excessive under the circumstances" (People v Diaz, 146 AD3d 803, 805[2017]; see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780 [1992]). Here,however, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Scheinkman, P.J., Dillon, Cohen and Christopher, JJ., concur.