| People v D.A. |
| 2020 NY Slip Op 03124 [184 AD3d 581] |
| June 3, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v D.A., Appellant. |
Paul Skip Laisure, New York, NY (Alice R.B. Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross ofcounsel; Ruby D. Andrade on the brief), for respondent.
Motion by the appellant, in effect, to recall and vacate a decision and order of this Courtdated March 6, 2019 (People v D.A., 170 AD3d 739 [2019]), which determined appealsfrom two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both renderedFebruary 8, 2017, and to amend the caption to make it anonymous.
Upon the papers filed in support of the motion and the papers filed in relation thereto, itis
Ordered that the motion is granted, the decision and order of this Court dated March 6, 2019,is recalled and vacated, the caption is amended, and the following decision and order issubstituted for the prior decision and order:
Appeals by the defendant from two judgments of the Supreme Court, Kings County(Cassandra Mullen, J.), both rendered February 8, 2017, convicting him of criminal possession ofa firearm under indictment No. 2721/16, and attempted criminal possession of a weapon in thesecond degree under indictment No. 9985/16, upon his pleas of guilty, and imposingsentences.
Ordered that the judgment rendered under indictment No. 2721/16 is modified, on the law,by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and itis further,
Ordered that the judgment rendered under indictment No. 9985/16 is affirmed.
The defendant pleaded guilty under Kings County indictment No. 2721/16 to criminalpossession of a firearm for acts he committed when he was 18 years old. The defendant pleadedguilty under Kings County indictment No. 9985/16 to attempted criminal possession of a weaponin the second degree for acts he committed when he was 19 years old. The Supreme Courtsentenced the defendant under both indictments on February 8, 2017. The defendant appealsfrom both judgments.
"CPL 720.20 (1) provides, in relevant part, that upon the conviction of an eligible youth, 'atthe time of pronouncing sentence the court must determine whether or not the eligible youth is ayouthful offender' " (People vHall, 160 AD3d 896, 896 [2018], quoting CPL 720.20 [1]). "Compliance with thisstatutory mandate requires that the sentencing court actually consider and make a determinationof whether an eligible youth is entitled to youthful offender treatment, 'even where [the]defendant has failed to ask to be treated as a youthful offender, or has purported to waive his orher right to make such a request' " (People v Hall, 160 AD3d at 896-897, quotingPeople v Rudolph, 21 NY3d497, 499 [2013]). Here, as the People correctly concede, the defendant "was a youth eligibleto be found a youthful offender" with respect to his conviction of criminal possession of afirearm, "and the record does not demonstrate that the Supreme Court considered and determinedwhether the defendant should be afforded youthful offender status" (People v Hall, 160AD3d at 897). "Where, as here, the sentencing court failed to comply with CPL 720.20, thisCourt must vacate the sentence and remit the matter to the sentencing court for resentencing afterdetermining whether the defendant should be treated as a youthful offender" (People v Thomas, 157 AD3d 723,724-725 [2018]). Contrary to the People's contention, holding the appeal in abeyance pending ayouthful offender determination is not appropriate in this case, as the defendant has not yetcompleted his sentence and there is no issue on appeal that we do not decide herein (seeid. at 725).
The defendant contends that the Supreme Court lacked the authority to issue an order ofprotection at the time of sentencing, as the individual named in the order of protection was not avictim, victim's relative or household member, or witness as defined by CPL 530.13 (4).However, the defendant failed to preserve this argument for appellate review (see CPL470.05 [2]; People v May, 138AD3d 1146, 1147 [2016]), and we decline to review it in the exercise of our interest ofjustice jurisdiction since the defendant agreed to the issuance of an order of protection as part ofhis plea agreement (see People vSmith, 83 AD3d 1213, 1214 [2011]).
"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 Daniels, 160 AD3d979, 980 [2018]; People vPressley, 116 AD3d 794, 795-796 [2014]). An appeal waiver is made knowingly,intelligently, and voluntarily where "a defendant has a full appreciation of the consequences ofsuch waiver" (People v Brown, 122AD3d 133, 136 [2014] [internal quotation marks omitted]).
Here, the People correctly concede that the record does not demonstrate that the defendantknowingly, intelligently, and voluntarily waived his right to appeal (see People v Lopez,6 NY3d at 256). In light of the defendant's age, ninth grade education, and lack of experiencewith the criminal justice system, the Supreme Court's cursory colloquy regarding the appealwaiver was insufficient (see e.g. Peoplev Fuller, 163 AD3d 715, 715 [2018]). The court twice improperly suggested that theappeal waiver was mandatory, failed to explain the defendant's right to appeal and theconsequences of waiving that right, and did not ensure that the defendant understood that hisright to appeal was separate from the rights that he would automatically forfeit upon pleadingguilty (see People v Lopez, 6 NY3d at 256; People v Daniels, 160 AD3d at 980;People v Brown, 122 AD3d at 141-142). Although the defendant was represented bycounsel, his attorney "did not participate during the proceedings other than to acknowledge to thecourt that he was the defendant's attorney, and counsel did not sign the defendant's written appealwaiver form[s]" (People v Latham,162 AD3d 1068, 1070 [2018]). Nor did the fact that the court asked the defendant if hisattorney had spoken to him about the appeal waiver demonstrate that the defendant knowingly,voluntarily, and intelligently waived his right to appeal, as it is not "sufficient for the trial court todefer to the defendant's off-the-record conversations with defense counsel by merely confirmingwith defense counsel that he or she has discussed the waiver of the right to appeal with thedefendant" (People v Brown, 122 AD3d at 141). Finally, "although the record on appealreflects that the defendant signed the written appeal waiver form[s], a written waiver is not acomplete substitute for an on-the-record explanation of the nature of the right to appeal"(People v Latham, 162 AD3d at 1070 [internal quotation marks omitted]). Thus, theappeal waiver does not preclude review of the defendant's claim that his sentence underindictment No. 9985/16 was excessive. However, the sentence imposed under that indictmentwas not excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Leventhal,Connolly and Christopher, JJ., concur.