| People v Stevens |
| 2022 NY Slip Op 01815 [203 AD3d 958] |
| March 16, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rasha T. Stevens, Appellant. |
Carol Kahn, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T.McLoughlin, J.), rendered December 21, 2018, convicting him of criminal possession of acontrolled substance in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant and two codefendants were indicted for one count of criminal possession of acontrolled substance in the first degree. The charge arose from the stop of a car in which thedefendant was a passenger, on the Taconic State Parkway, in the Town of Pleasant Valley, inJuly 2018. The police discovered more than eight ounces of cocaine in a bag in the car.
Several months after the defendant's arrest, on November 30, 2018, the defendant entered aplea of guilty to a reduced charge, criminal possession of a controlled substance in the seconddegree, and waived his right to appeal, in exchange for a negotiated sentence.
At the plea proceeding, after the County Court addressed, among other issues, the trial rightsthe defendant would automatically forfeit by pleading guilty, and whether he was satisfied withhis attorney's representation, the court discussed the defendant's waiver of his right to appeal. Thecourt began by explaining that, ordinarily, a defendant who pleads guilty still retains the right toappeal; however, the defendant was being asked, in this case, to waive that right. The court thenstated that an appeal was "a proceeding before a higher court," where the defendant could "arguethat an error took place in this court which requires a modification or a reversal of a conviction."The court further noted that, when a defendant cannot afford to hire a lawyer to pursue an appeal,the State bears those costs.
The County Court went on to explain that, by waiving his right to appeal, the defendant wasnot "giv[ing] up his right to take an appeal," but that the effect of the waiver was that "mostclaims of error," including whether the sentence imposed was excessive, would not be consideredby the appellate court. Thus, the court advised the defendant, the "conviction from this plea andsentence will normally be final." The defendant confirmed that he understood all of this, that hehad spoken with his attorney about the waiver, and that he was willing to waive his right to [*2]appeal in exchange for the negotiated plea and sentence.
At the defendant's sentencing, he admitted that in 2015 he was convicted, in New YorkCounty, of criminal possession of a weapon in the second degree, a class C violent felonyoffense. Accordingly, the County Court adjudicated him a second felony drug offender with aprior conviction of a violent felony offense. The court imposed the promised sentence. Thedefendant appeals, contending that the waiver of his right to appeal was invalid and that hissentence is excessive and should be reduced.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waivedhis right to appeal (see People vThomas, 34 NY3d 545 [2019]; People v Lopez, 6 NY3d 248 [2006]). By following the ModelColloquy for the waiver of the right to appeal drafted by the Unified Court System's CriminalJury Instructions and Model Colloquy Committee—a practice specifically endorsed by thisCourt in People v Batista (167AD3d 69, 77-78 [2018]), and by the Court of Appeals in People v Thomas (34 NY3dat 567)—the County Court ensured that the defendant understood, most significantly, thatthe waiver of his right to appeal was distinct from the trial rights that would be automaticallyforfeited as a consequence of his plea of guilty (see People v Brown, 122 AD3d 133, 137 [2014]), and that thewaiver of the right to appeal is not an "absolute bar" to taking an appeal (People vThomas, 34 NY3d at 558). With respect to the latter point, the court's colloquy made clearthat the appeal waiver did not preclude the defendant from taking an appeal. But, if he did takean appeal, "most claims of error" would not be reviewable, and, therefore, his convictionand sentence "normally [would] be final" (emphasis added; see People v Thomas,34 NY3d at 567). Thus, the court effectively conveyed to the defendant that some issues wouldsurvive his appeal waiver (see People vLopez, 199 AD3d 704 [2021]).
Contrary to the defendant's contention, it was not necessary for the County Court tospecifically delineate the various issues that survive a valid appeal waiver (see People vThomas, 34 NY3d at 567; People vLopez, 199 AD3d 704 [2021]; People v Batista, 167 AD3d at 77-78). Notably,in the iteration of the model appeal waiver colloquy embraced in Batista andThomas, enumerating those issues—a defendant's competency to stand trial, hisconstitutional right to a speedy trial, the voluntariness of the plea, the validity of the appealwaiver, and the legality of the sentence imposed—was deemed optional (see People vBatista, 167 AD3d at 77). It is true that, after Thomas was decided, the "optional"designation for that portion of the colloquy was removed, though the defendant's competency andconstitutional speedy trial issues are suggested for inclusion only "if [they are] an issue in thecase" (NY Model Colloquies, Waiver of Right to Appeal,https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.nycourts.gov%2Fjudges%2Fcji%2F8-Colloquies%2FWaiver%2520of%2520Right%2520to%2520Appeal.docx&wdOrigin=BROWSELINK). But since this Court and the Court of Appeals recommended thatcourts utilize the previous version of the model colloquy, the fact that a slight revision has beenmade is of little moment. Certainly a model colloquy can be periodically revised withoutrendering prior versions defective.
Indeed, model colloquies "are only intended as a guide to the Trial Justice, and need not bestrictly adhered to" (Kunnemeyer v LongIs. R.R., 202 AD3d 74, 86 [2021] [internal quotation marks omitted]; see also People v Bradshaw, 18 NY3d257, 265 [2011]). And, in some circumstances, a court might feel that it is appropriate toadvise the defendant of a particular issue, or issues, that survives an appeal waiver. But here,most of these issues were of no relevance and, therefore, the County Court could reasonably haveconcluded there was no point in discussing them. For example, the defendant pleaded guiltywithin a few months of his arrest; thus, he did not have a viable constitutional speedy trial claimto pursue on appeal (cf. People vWiggins, 31 NY3d 1, 19 [2018]). And, having declined to raise any objections to hispredicate status, the defendant's sentence, which was within the statutory range, was not illegal(see Penal Law §§ 70.71 [4] [b] [ii]; 220.18; CPL 400.21). Moreover,nothing in the record suggests that the defendant had any competency issues.
As to the "voluntariness of the plea and appeal waiver" (People v Christopher B., 184 AD3d 657, 658 [2020]), these areissues that would seem, in most cases, to be best addressed by counsel, who, having participatedin the plea proceeding, can advise the defendant regarding whether any viable appellate issuesalong these lines exist (see Strickland v Washington, 466 US 668, 690 [1984]).
In short, we conclude that the County Court's colloquy in this case was more than [*3]adequate to ensure that the defendant knowingly, intelligently, andvoluntarily waived his right to appeal. Contrary to the defendant's further contention, it is wellsettled that a written waiver form is not required for an appeal waiver to be valid (see Peoplev Brown, 122 AD3d at 138-139).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at255-256). Barros, J.P., Chambers, Zayas and Dowling, JJ., concur.