| People v Eduardo S. |
| 2020 NY Slip Op 04873 [186 AD3d 1265] |
| September 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eduardo S., Appellant. |
Paul Skip Laisure, New York, NY (Paris C. DeYoung of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and ChristopherBlira-Koessler of counsel; Eleanor Reilly on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Queens County (Lenora Gerald, J.), imposed November 28, 2018, upon his plea of guilty, on theground 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 third degree. He was adjudicated a youthful offender and sentenced to a three-year periodof conditional discharge.
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]; seePeople v Christopher B., 184 AD3d 657 [2020]).
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]; see People vChristopher B., 184 AD3d 657 [2020]).
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).
In this case, the People's extended defense of the appeal waiver is unconvincing. As an initialmatter, the appeal waiver was not mentioned by the Supreme Court prior to the defendant's pleaof guilty, but only afterward. Accordingly, "the defendant received no material benefit from hisappeal waiver, as the court had already accepted the defendant's plea and made its sentencepromise" (People v Sutton, 184AD3d 236, 245 [2020]). Under such circumstances and in the absence of a request by thePeople, "the court's insistence upon the execution of an appeal waiver was a gratuitous,after-the-fact additional demand asserted after the bargain had already been struck" (id. at245). In addition, the court's colloquy on this issue, conducted after the plea had already beenaccepted, "mischaracterized the appellate rights waived as encompassing an absolute bar to thetaking of a direct appeal" (People vHoward, 183 AD3d 640, 640 [2020]; see People v Thomas, 34 NY3d at565-566; People v Leiva, 184 AD3d731 [2020]; People v ChristopherB., 184 AD3d 657 [2020]). Contrary to the People's contention, "these defects were notcured by the terms of the standard written appeal waiver form, which not only lacked detail andrepeated many of the mischaracterizations contained in the court's colloquy, but further misstatedthat the defendant was giving up the right to all postconviction relief separate from the directappeal" (People v Howard, 183 AD3d at 640; see People v Thomas, 34 NY3d at565-566; People v Leiva, 184 AD3d731 [2020]; People v Chy, 184AD3d 664 [2020]; see also People vChristopher B., 184 AD3d 657 [2020]).
On this record, and based on the totality of the circumstances, including the defendant'syoung age and his inexperience with the criminal justice system, we cannot conclude that thedefendant understood the nature of the appellate rights that he was waiving (see People vThomas, 34 NY3d at 566; People vChristopher B., 184 AD3d 657 [2020]). Inasmuch as the record does not establish thatthe waiver limiting the scope of appeal was knowingly or voluntarily made, it cannot be enforced(see People v Thomas, 34 NY3d at 566; People v Christopher B., 184 AD3d 657 [2020]), and, thus, it doesnot preclude appellate review of the defendant's excessive sentence claim (see e.g. People v Gober, 139 AD3d872, 872 [2016]; People vHarper, 103 AD3d 665, 665 [2013]).
However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Leventhal, Miller, Duffy and LaSalle, JJ., concur.