| People v Momoh |
| 2021 NY Slip Op 08251 [192 AD3d 915] |
| March 17, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michel Momoh, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher and Carrie A. Ciganekof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F.Russo, J.), rendered September 26, 2018, convicting him of attempted criminal possession of aforged instrument in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal isinvalid. 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 248, 256[2006]; see People v Bradshaw, 18NY3d 257, 264 [2011]; People vBrown, 122 AD3d 133 [2014]). Although the Court of Appeals has "repeatedly observedthat there is no mandatory litany that must be used in order to obtain a valid waiver of appellaterights" (People v Johnson, 14 NY3d483, 486 [2010]), "[t]he best way to ensure that the record reflects that the right[s] [are]known and intentionally relinquished by the defendant is to fully explain to the defendant, on therecord, the nature of the right to appeal and the consequences of waiving [those appellate rights]"(People v Brown, 122 AD3d at 142; see People v Moncrieft, 168 AD3d 982, 983 [2019]; People v Rocchino, 153 AD3d1284, 1284-1285 [2017]; People vBlackwood, 148 AD3d 716, 716 [2017]).
Here, the transcript of the plea proceeding reveals that the County Court failed to sufficientlyadvise the defendant of the nature of his right to appeal and the consequences of waiving thatright (see People v Israel, 172 AD3d1405, 1405 [2019]; People v Moncrieft, 168 AD3d at 984; People v Batista, 167 AD3d 69, 76[2018]; People v Brown, 122 AD3d at 142). The court's colloquy on this issue"mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of adirect appeal" (People v Howard,183 AD3d 640, 640 [2020]; seePeople v Thomas, 34 NY3d 545, 565-566 [2019]; People v Leiva, 184 AD3d 731 [2020]; People v Christopher B., 184 AD3d657, 659 [2020]). Contrary to the People's contention, this improper description of the scopeof the appellate rights relinquished by the waiver was not cured by the standard written appealwaiver form, which also improperly indicated that the defendant was waiving "any and all"appellate rights and which otherwise failed to inform the defendant that appellate reviewremained available for select issues (see People v Thomas, 34 NY3d at 565-566; People v Seymour, 189 AD3d1269 [2020]; People v EduardoS., 186 AD3d 1265, 1267-1268 [2020]; People v Howard, 183 AD3d at 640). Asthe Court of Appeals has recently reiterated, "[t]he 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 [*2]fundamental issues, including the voluntariness of the plea andappeal waiver, legality of the sentence and the jurisdiction of the court" (People vThomas, 34 NY3d at 566; seePeople v Leiva, 184 AD3d 731 [2020]; People v Christopher B., 184 AD3d at659). On this record, we cannot conclude that the defendant understood the nature of theappellate rights that he was waiving (see People v Thomas, 34 NY3d at 566; People v Leiva, 184 AD3d 731[2020]; People v Christopher B., 184 AD3d at 659). Inasmuch as the record does notestablish that the waiver limiting the scope of appeal was knowingly or voluntarily made, itcannot be enforced (see People v Thomas, 34 NY3d at 566; People v Leiva, 184 AD3d 731[2020]; People v Christopher B.,184 AD3d 657 [2020]).
Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]).
The defendant's challenge to the procedure by which he was sentenced as a second felonyoffender (see CPL 400.21; People v Quinones, 162 AD3d 1402, 1402-1403 [2018]) isunpreserved for appellate review (see People v Smith, 73 NY2d 961, 962-963 [1989];People v Oliver, 63 NY2d 973, 974-975 [1984]; People v Jackson, 87 AD3d 552, 553-554 [2011]; cf. People vSamms, 95 NY2d 52, 57-58 [2000]), and we decline to reach it in the exercise of our interestof justice jurisdiction (see e.g. People v Self, 186 AD2d 600 [1992]). Under thesecircumstances, "[a] CPL 440.20 motion is the proper vehicle for raising [such] a challenge to asentence" (People v Jurgins, 26NY3d 607, 612-613 [2015]; see CPL 440.20 [1]).
The defendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixedclaim of ineffective assistance" (Peoplev Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Chambers, J.P., Miller,Duffy and Christopher, JJ., concur.