| People v Ayala |
| 2019 NY Slip Op 03799 [172 AD3d 1085] |
| May 15, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eduardo Ayala, Appellant. |
Paul Skip Laisure, New York, NY (Melissa S. Horlick of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross ofcounsel; Marielle Burnett on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Guy James Mangano, Jr., J.), imposed March 10, 2017, on the ground that thesentence was excessive.
Ordered that the sentence is affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to burglaryin the third degree and robbery in the third degree. He was sentenced, in accordance with the pleaagreement, to an indeterminate term of 3
On appeal, the defendant contends that the sentence imposed was excessive. The Peopleargue that review of the defendant's contention is precluded because he waived his right toappeal.
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 at843-844).
Here, the record of the plea proceedings 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 vBryant, 28 NY3d 1094, 1096 [2016]; People v Sanders, 25 NY3d 337, 341 [2015]; People v Byrd, 100 AD3d 1013,1013 [2012]; see also People v Brown, 122 AD3d at 144). Furthermore, the record of theplea proceeding demonstrates that the defendant received an explanation of the nature of the rightto appeal and the consequences of waiving that right (see People v Spitzer, 163 AD3d 591 [2018]; People v Rocchino, 153 AD3d1284 [2017]; People v Stiles,143 AD3d 747, 747 [2016]; Peoplev Romero-Flores, 128 AD3d 1102, 1102 [2015]; People v McRae, 123 AD3d 848, 848-849 [2014]; see alsoPeople v Brown, 122 AD3d at 144). Under the circumstances, including the defendant's"extensive experience with the criminal justice system" (People v Sanders, 25 NY3d at342), the defendant knowingly, voluntarily, and intelligently waived his right to appeal (seegenerally 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]). The defendant's validwaiver of his right to appeal precludes review of his contention that the sentence imposed wasexcessive (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]). Mastro, J.P., Miller, Duffy and LaSalle, JJ., concur.