| People v Moncrieft |
| 2019 NY Slip Op 00466 [168 AD3d 982] |
| January 23, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gabriel Moncrieft, Appellant. |
Paul Skip Laisure, New York, NY (Jonathan Schoepp-Wong of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy ofcounsel; Robert Ho on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P.Murphy, J.), rendered November 28, 2016, convicting him of criminal possession of a weapon inthe second degree, upon his plea of guilty, and imposing sentence. The appeal brings up forreview an order of protection issued at the time of sentencing.
Ordered that upon the appeal from the judgment, the order of protection issued at the time ofsentencing is vacated; and it is further,
Ordered that the judgment is affirmed.
The defendant contends that his sentence of five years' imprisonment plus five years ofpostrelease supervision on his conviction of criminal possession of a weapon in the seconddegree was excessive. The People argue that this contention is precluded by the defendant'swaiver of his right 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]). However, a waiverof the right to appeal "is effective only so long as the record demonstrates that it was madeknowingly, intelligently and voluntarily" (id. at 256; 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]).
As this Court recently articulated, " 'a thorough explanation should include anadvisement that, while a defendant ordinarily retains the right to appeal even after he or shepleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive thatright' " (People v Batista,167 AD3d 69, 76 [2018], quoting People v Brown, 122 AD3d at 144; see People v Medina, 161 AD3d778, 779 [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 Batista, 167 AD3d at 76, quotingPeople v Brown, 122 AD3d at 144; see People v Swen, 164 AD3d 926 [2018]; People v Alston, 163 AD3d 843,843-844 [2018]). Finally, " 'trial courts should then explain the consequences of waivingthe right to appeal, i.e., that the conviction and sentence will not receive any further review, andshall be final' " (People v Batista, 167 AD3d at 76, quoting People vBrown, 122 AD3d at 144; seePeople v Swen, 164 AD3d 926 [2018]; People v Alston, 163 AD3d at 843-844).As we pointed out in Batista, the Criminal Jury Instructions & Model Colloquies,available online through the New York State Unified Court System's website, include a modelcolloquy for the waiver of the right to appeal (see People v Batista, 167 AD3d at 76-77).While the use of the model colloquy is not mandatory, its use may nevertheless "substantiallyreduce the difficulties" (People v Batista, 167 AD3d at 83 [Scheinkman, P.J.,concurring]), provided that the trial judges retain and use flexibility to undertake individualizedinquiries as appropriate.
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's explanation was little more than a tautology: "[Y]ou have given up your rightto appeal. Which means there will be no appeal with regards to anything in your case, and theonly exception to that would be an illegal sentence or some constitutional issue. But basicallyyou have given up your right to appeal. Do you understand?" (see People v Colon, 153 AD3d 550, 550 [2017]; People v Kupershmidt, 152 AD3d797, 798 [2017]). Furthermore, the court's statements at the plea allocution suggested thatwaiving the right to appeal was mandatory rather than a right which the defendant was beingasked to voluntarily relinquish, and the court never elicited an acknowledgment that thedefendant was voluntarily waiving his right to appeal (see People v Alston, 163 AD3d at844; People v Santeramo, 153AD3d 1286, 1286 [2017]; People vGuarchaj, 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 Peoplev Cuevas-Alcantara, 136 AD3d at 650; People v Brown, 122 AD3d at 138-139; People v Keiser, 100 AD3d 927,928 [2012]). The transcript of the plea proceedings shows that the Supreme Court did notascertain on the record whether the defendant had read the written waiver or discussed it withdefense counsel, or whether he was even aware of its contents (see People v Alston, 163AD3d at 844; People v Santeramo, 153 AD3d at 1286; People v Black, 144 AD3d 935,936 [2016]; People v Pacheco, 138AD3d 1035, 1036 [2016]). Under the circumstances here, we conclude that the defendantdid not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Brown, 122 AD3d133 [2014]; 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).
Since the defendant did not validly waive his right to appeal, this Court is not precluded fromconsidering the merits of his contention that his sentence was excessive. Nevertheless, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant also contends that the Supreme Court improperly imposed an order ofprotection at the time of sentencing without stating the reasons for the imposition of the orderand without setting an expiration date for it. We note that this contention would survive even avalid waiver of the right to appeal (seePeople v Ramos, 164 AD3d 922 [2018]; People v Kennedy, 151 AD3d 1079, 1079 [2017]; People v Bernardini, 142 AD3d671, 671 [2016]).
A court is authorized to issue an order of protection for the benefit of victims and witnesses"[u]pon sentencing on a conviction for any offense" (CPL 530.13 [4]; see People v Nieves, 2 NY3d 310,315 [2004]). "[A]n order of protection issued incident to a criminal proceeding is an ameliorativemeasure intended to safeguard the rights of victims and witnesses both prior to and afterconviction—it is not a part of the sentence imposed" (People v Nieves, 2 NY3d at316). "Where a temporary order of protection was issued, the court shall state on the record thereasons for issuing or not issuing an order of protection" at the time of sentencing (CPL 530.13[4]). "The duration of such an order shall be fixed by the court" (id.).
Here, as the defendant correctly contends, the Supreme Court failed to state on the record thereasons for issuing the order of protection at the time of sentencing (see CPL 530.13 [4];cf. People v Ramos, 164 AD3d922 [2018]). Furthermore, as the People correctly concede, the court failed to fix theduration of the order of protection (see CPL 530.13 [4]; cf. People v Palaguachi, 35 AD3d767, 767-768 [2006]; People vOrtiz, 25 AD3d 811, 812 [2006]). Under these circumstances, we vacate the order ofprotection issued at the time of sentencing (compare People v Robinson, 110 AD3d 1010, 1010 [2013], with People v Ramos, 164 AD3d922 [2018]). Mastro, J.P., Miller, Duffy and LaSalle, JJ., concur.