| People v Christopher B. |
| 2020 NY Slip Op 03242 [184 AD3d 657] |
| June 10, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher B., Appellant. |
Paul Skip Laisure, New York, NY (Kendra L. Hutchinson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas Ross, and PeterN. Pearl of counsel), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Kings County (Dineen Ann Riviezzo, J.), imposed September 19, 2017, upon his plea of guilty,on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
The defendant entered into a plea agreement pursuant to which he pleaded guilty to robberyin the first degree. He was adjudicated a youthful offender and sentenced to one year in jail.
On appeal, the defendant contends that the sentence imposed was excessive. The Peopleargue that appellate review of the defendant's contention is precluded because he waived his rightto appeal and that, in any event, the defendant's sentence was not excessive.
"In New York, a criminal defendant has the right to appeal from a judgment of convictionand sentence" (People v Batista, 167AD3d 69, 72 [2018]; see CPL 450.10). However, a defendant may waive, as acondition of a plea agreement, "the right to have the appellate court review most claims of erroras well as whether the sentence imposed was excessive" (People v Batista, 167 AD3d at73; see William C. Donnino, 2012 Supp Practice Commentaries, McKinney's Cons Lawsof NY, CPL 450.10). Although such a waiver is often characterized as "a waiver of appeal, whichsuggests an absolute relinquishment of all appellate opportunity, [it] is in reality a limitation onthe issues that may be effectively reviewed on appeal" (People v Batista, 167 AD3d at 79[Scheinkman, P.J., concurring]).
A valid waiver that broadly limits the scope of appeal will generally preclude appellatereview of "any issue that does not involve a right of constitutional dimension going to 'the veryheart of the process' " (People vLopez, 6 NY3d 248, 255 [2006], quoting People v Hansen, 95 NY2d 227, 230[2000]; see People v Batista, 167 AD3d at 73). Even after executing such a waiver,however, "a defendant [still] retains the right to appellate review of . . . thevoluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of thecourt" (People v Thomas, 34 NY3d545, 566 [2019]).
A waiver that limits the scope of appellate review "is effective only so long as the recorddemonstrates that it was made knowingly, intelligently and voluntarily" (People v Lopez,6 NY3d at 256; see People vBradshaw, 18 NY3d 257, 264 [2011]; People v Brown, 122 AD3d 133, 136 [2014]). Although the Courtof Appeals has "repeatedly observed that there is no mandatory litany that must be used in orderto obtain a valid waiver of appellate rights" (People v Johnson, 14 NY3d 483, 486 [2010]), "[t]he best way toensure that the record reflects that the right[s] [are] known and intentionally relinquished by thedefendant is to fully explain to the defendant, on the record, the nature of the right to appeal andthe consequences of waiving [those appellate rights]" (People v Brown, 122 AD3d at142; see People v Rocchino, 153AD3d 1284, 1284-1285 [2017]; People v Blackwood, 148 AD3d 716, 716 [2017]).
The Court of Appeals has stated that "when a trial court has utterly 'mischaracterized thenature of the right a defendant was being asked to cede,' an appellate 'court cannot be certain thatthe defendant comprehended the nature of the waiver of appellate rights' " (People vThomas, 34 NY3d at 565-566, quoting People v Lopez, 6 NY3d at 256-257).However, even if a trial court mischaracterizes the nature or effect of a waiver that limits thescope of appellate review, the waiver may be "enforceable so long as the totality of thecircumstances reveals that the defendant understood the nature of the appellate rights beingwaived" (People v Thomas, 34 NY3d at 559). "[I]n determining whether the recorddemonstrates that a defendant understood [the] waiver's consequences, proper considerationsinclude the defendant's consultation with counsel and on-the-record acknowledgments ofunderstanding, a written appeal waiver that supplements or clarifies the court's oral advice andthe defendant's experience with the criminal justice system" (id. at 560; see People v Sanders, 25 NY3d337, 341-342 [2015]; People vBradshaw, 18 NY3d 257, 267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez,6 NY3d at 256).
Here, the Supreme Court properly explained to the defendant the nature of the right to appealand distinguished that right from the rights automatically forfeited upon pleading guilty.However, the court mischaracterized the effect of the waiver on the defendant's right to appeal. Inthis regard, the court, after describing the function of an appellate court, concluded itsexplanation of the waiver by stating: "What all this means, though, is that this plea and thesentence I am going to impose are final and that higher court will not have a chance to reviewit."
As the Court of Appeals has recently stated: "The improper description of the scope of theappellate rights relinquished by the waiver is refuted by . . . precedent, whereby adefendant retains the right to appellate review of very selective fundamental issues, including thevoluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of thecourt" (People v Thomas, 34 NY3d at 566). Accordingly, it was incorrect for theSupreme Court to convey to the defendant that an appellate court would have no authority toreview the plea or the sentence under any circumstances.
Furthermore, the record in this case does not include any "clarifying language" indicating that"appellate review remained available for certain issues" or that "the right to take an appeal wasretained" (id. at 564). Although the People cite to a written waiver that was apparentlysigned by the defendant, the Supreme Court "failed to confirm that [the defendant] understoodthe contents of the written waiver[ ]" (id. at 566). In any event, the written waiver doesnot indicate that appellate review remained for certain limited issues, but rather, merely statedthat "[the] sentence and conviction will be final" (cf. NY Model Colloquies, Waiver ofRight to Appeal).
Although the defendant had prior experience with the criminal justice system, he was only 19years old at the time of the plea and sentence, and had not completed high school. On this record,and based on the totality of the circumstances, we cannot conclude that the defendant understoodthe nature of the appellate rights that he was waiving given the "erroneous advisements warningof absolute bars to the pursuit of all potential remedies" (People v Thomas, 34 NY3d at566). Inasmuch as the record does not establish that the waiver limiting the scope of appeal wasknowingly or voluntarily made, it cannot be enforced (see id.). Accordingly, thepurported waiver does not preclude appellate review of the defendant's excessive sentence claim(see People v Johnson, 157 AD3d964, 965 [2018]).
Contrary to the defendant's contention, however, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Leventhal, Miller, Duffy andLaSalle, JJ., concur.