| People v Slade |
| 2020 NY Slip Op 01366 [180 AD3d 1073] |
| February 26, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terrell E. Slade, Appellant. |
Mary Z. Raleigh, Warwick, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County(William L. DeProspo, J.), rendered June 14, 2018, convicting him of attempted assaultin the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal, the defendant contends that the enhanced sentence he received after hefailed to appear for a probation department interview and a scheduled sentencing datewas excessive. The People argue that appellate review of the defendant's contention isprecluded because he waived his right to appeal.
A waiver of the right to appeal "is effective only so long as the record demonstratesthat it was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]; People v Brown, 122 AD3d 133, 136 [2014]). Althoughthe Court of Appeals has "repeatedly observed that there is no mandatory litany that mustbe used in order to obtain a valid waiver of appellate rights" (People v Johnson, 14 NY3d483, 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 thedefendant, on the record, the nature of the right to appeal and the consequences ofwaiving it" (People v Brown, 122 AD3d at 142; see People v Ayala, 172 AD3d1085, 1086 [2019]; Peoplev Carryl, 169 AD3d 818, 819 [2019]).
As this Court recently articulated, " 'a thorough explanation should includean advisement that, while a defendant ordinarily retains the right to appeal even after heor she pleads guilty, the defendant is being asked, as a condition of the plea agreement, towaive that right' " (People v Batista, 167 AD3d 69, 76 [2018], quotingPeople v Brown, 122 AD3d at 144; see People v Swen, 164 AD3d 926, 927 [2018]; People v Davis, 164 AD3d827, 828 [2018]; People vSpitzer, 163 AD3d 591, 592 [2018]; People v Medina, 161 AD3d 778, 779 [2018]). Adefendant should also " 'receive an explanation of the nature of the right toappeal, which essentially advises that this right entails the opportunity to argue, before ahigher court, any issues pertaining to the defendant's conviction and sentence and to havethat higher court decide whether the conviction or sentence should be set aside basedupon any of those issues . . . [and] that appellate counsel will be appointedin the event that he or she were indigent' " (People v Batista, 167 AD3dat 76, quoting People v Brown, 122 AD3d at 144; see People v Swen,164 AD3d at 927; People v Davis, 164 AD3d at 828; People v Spitzer,163 AD3d at 592). As this Court pointed out in Batista, the Criminal JuryInstructions & Model Colloquies, available online through the New York StateUnified Court System's website, include a model colloquy for the waiver of the right toappeal (see People v Batista, 167 AD3d at 76-77). While the use of the modelcolloquy is not mandatory, its use may nevertheless "substantially reduce the difficulties"(id. at 83 [Scheinkman, P.J., concurring]), provided that the trial judges retainand use flexibility to undertake individualized inquiries as appropriate.
Here, the record does not establish that the defendant knowingly, voluntarily, andintelligently waived his right to appeal (see People v Etienne, 152 AD3d 790, 790 [2017]; People v Cuevas-Alcantara,136 AD3d 650, 650 [2016]). The County Court's terse colloquy during the pleaallocution failed to sufficiently advise the defendant of the nature of his right to appealand the consequences of waiving that right (see People v Moncrieft, 168 AD3d 982, 984 [2019]; People v Neilson, 167 AD3d779, 780 [2018]). Although the defendant executed a written appeal waiver form, awritten waiver is not a complete substitute for an on-the-record explanation of the natureof the right to appeal (seePeople v Anderson, 170 AD3d 739, 741 [2019]; People v Latham, 162 AD3d1068, 1070 [2018]). Moreover, the defendant was not informed of the maximumsentence that could be imposed if he failed to comply with the conditions of his pleaagreement (see People v JuwanL.D., 167 AD3d 645, 646 [2018]; People v McNeil, 164 AD3d 608, 608 [2018]; People v Yodice, 153 AD3d1373, 1374 [2017]). Thus, the purported appeal waiver does not preclude appellatereview of the defendant's contention that the enhanced sentence was excessive.
Nevertheless, under the circumstances, the enhanced sentence was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Scheinkman, P.J., Rivera, Roman andChristopher, JJ., concur.