| People v Bonilla |
| 2022 NY Slip Op 07304 [211 AD3d 614] |
| December 22, 2022 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v James Bonilla, Appellant. |
Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), forappellant.
Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., at motions;Patricia M. Nuñez, J., at plea and sentencing), rendered April 21, 2016, convictingdefendant of criminal possession of a controlled substance in the third degree, andsentencing him to three years' probation, reversed, on the law, the judgment and thedenial of the motion to controvert the search warrant vacated, and the matter remandedfor further proceedings on that motion.
Defendant did not validly waive his right to appeal "because the court did not makeclear that the right to appeal is separate and distinct from the numerous other trial rightsautomatically forfeited upon pleading guilty" (People v Ellis, 194 AD3d 428, 428 [1st Dept 2021], lvdenied 37 NY3d 964 [2021]). Specifically, the court conflated defendant's appellateand trial rights by asking the defendant "[i]s that what you wish to do to waive your rightto appeal and your other rights . . . by pleading guilty[?]" Instead, themajority of the court's colloquy of defendant's appellate rights focused on sentencing, onwhich the court itself needed clarification, not in differentiating trial from appellaterights.
Moreover, the court made other errors in its oral colloquy that further justifyinvalidating defendant's waiver of his appellate rights. Specifically, the court failed toadvise defendant of the nature of the right to appeal (People v Lopez, 6 NY3d 248, 257 [2006]; People v Harris, 137 AD3d514, 514 [1st Dept 2016], lv denied 27 NY3d 1070 [2016] ["the Court neveradvised defendant of the consequences of the appeal waiver, or spoke to defendant toensure he understood the rights he was forfeiting"]), erroneously mischaracterized thefinality of the waiver (People vThomas, 34 NY3d 545, 554-556, 565-566 [2019], cert denied 589 US&mdash, 140 S Ct 2634 [2020]), and failed to discuss the written waiver form withdefendant (People v Acosta,133 AD3d 506, 507 [1st Dept 2015] [invalidating an appellate waiver due to court'sfailure to establish that the defendant signed it and was aware of its contents]; cf. People v Bryant, 28 NY3d1094, 1096 [2016] [affirming appellate waiver partially due to trial court's separateadvisement to the defendant on the written waiver form]; Harris, 137 AD3d at514). The detailed written waiver that defendant executed with counsel cannot save thenumerous errors in the court's oral colloquy, as " 'a written waiver is not acomplete substitute for an on-the-record explanation of the nature of the right toappeal' " (People vOquendo, 105 AD3d 447, 448 [1st Dept 2013], lv denied 21 NY3d 1007[2013], quoting People vBradshaw, 76 AD3d 566, 569 [2d Dept 2010], affd 18 NY3d 257[2011]).
We agree that one must look at the totality of the circumstances to determine whetherdefendant's waiver of appellate rights was knowing, intelligent and voluntary and thatthere is no requirement for a court to pose a mandatory, minimal litany of questions toensure the validity of such a waiver. Nonetheless[*2], wemust also be mindful that for a defendant, "[g]iving up the right to appeal is not aperfunctory step" (Lopez, 6 NY3d at 256). The dissent asserts that our analysis ofthe plea allocution is narrowly focused. It is not. We are engaging in the holistic testoutlined in Thomas (34 NY3d at 559). Under such analysis, we have recentlyinvalidated a waiver of appeal, despite the defendant signing a virtually identical writtenwaiver form as here, where "[t]he court did not confirm that defendant understood thewritten waiver, that he had discussed the waiver with his counsel, or even that he hadread it" (People v Thorne,207 AD3d 73, 77 [1st Dept 2022]). In our view, the position advocated by thedissent cannot be reconciled with Thorne. Here, the deficiencies in the appealwaiver colloquy are strikingly similar as the court never asked defendant if he agreed tosign the form, let alone if he read it, understood it or even discussed its contents withcounsel. Instead, the court merely asked defense counsel if defendant signed the waiverform.
The dissent, citing People v Bryant, states that the appeal waiver met theholistic approach advanced by the Court of Appeals. However, while the written waiverform here may have used the very same words as that in Bryant, the plea court'scolloquy was markedly deficient in the aggregate. First, the plea court in Bryantdirectly allocuted the defendant on the written waiver form by asking "[t]here is adocument entitled waiver of appeal. I see that you executed that document. Do you haveany questions about it?" to which the defendant replied "No" (Bryant, 28 NY3d at1096). Rather, here the court relied on defense counsel's responses regarding theexecution of the written waiver form. Moreover, in Bryant, the plea court furtherclarified the finality of defendant's written waiver by noting that "some residual rightsremain" (id.). In contrast, here, the court never discussed defendant's residualrights (i.e., four issues that survive a waiver of appeal, namely: a constitutional speedytrial claim; a challenge to the legality of the sentence; issues of defendant's competencyto stand trial; and the voluntariness of the appeal waiver) but merely told defendant thatby waiving his right to appeal "[t]hat means that this plea of guilty and the sentence willbe final." These and other errors render defendant's appeal waiver incomparable to thatpresented in Bryant.
Finally, absent "on-the-record acknowledgments of [defendant's clear]understanding" (Thomas, 34 NY3d at 560) of his appellate rights waiver, thepresumption of defense counsel's competent representation during the plea negotiationsis simply insufficient to overcome the court's deficient colloquy (id.).Accordingly, we find that this waiver of appeal is invalid and therefore does notforeclose review of defendant's underlying suppression claims.
The court properly denied defendant's motion for a Mapp/Dunaway hearing.A court may summarily deny a [*3]motion to suppress if"[t]he sworn allegations of fact do not as a matter of law support the ground alleged"(CPL 710.60 [3] [b]). "[C]onclusory allegations of a general constitutional violation orlack of probable cause are of no avail in meeting the statutory requirements forentitlement to a hearing" (People v Jones, 95 NY2d 721, 726 [2001], citingPeople v Mendoza, 82 NY2d 415, 431 [1993]). Here, defendant was not entitledto a hearing based on his conclusory assertions that the search and seizure violated hisfederal and state constitutional rights or that he was arrested without probable cause.
However, the court should not have denied defendant's motion to controvert thesearch warrant sua sponte due to lack of standing. Where a defendant seeks to suppressevidence on the grounds that it was obtained by means of an illegal search, they "mustallege standing to challenge the search and, if the allegation is disputed, mustestablish standing" (People v Carter, 86 NY2d 721, 723 [1995] [emphasisadded]). Here, the People never disputed that defendant had standing to challenge thesearch warrant. Therefore, the court should not have denied the motion based "on aground not raised by the People" (People v Hatchett, 196 AD3d 431, 431 [1st Dept 2021]).Furthermore, the People's current arguments on appeal are precluded by People vLaFontaine (92 NY2d 470, 474 [1998]) because the suppression court did not ruleupon these issues, and this Court may not affirm on those alternative grounds (see People v Holmes, 170AD3d 532, 533 [1st Dept 2019]). Concur—Kapnick, J.P., Friedman,Shulman, Rodriguez, JJ.
Mazzarelli, J., dissents in a memorandum as follows: A waiver of the right to appealis enforceable "so long as the totality of the circumstances reveals that the defendantunderstood the nature of the appellate rights being waived" (People v Thomas, 34 NY3d545, 559 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]). Thus,the Court of Appeals "has not . . . set forth the absolute minimum that mustbe conveyed to a pleading defendant in the plea colloquy in order for the right to appealto be validly waived" (People vSanders, 25 NY3d 337, 341 [2015]). Nor must a trial court "engage in anyparticular litany when apprising a defendant pleading guilty" of the implication of hiswaiver of an appeal (People vLopez, 6 NY3d 248, 256 [2006]).
The majority engages in an analysis of the plea allocution in this case that is narrowlyfocused on the particulars of the exchange between the court, counsel and defendant,instead of applying the holistic approach favored by the Court of Appeals, which is mostconcerned with whether, at bottom, the defendant waived his appellate rights knowingly,intelligently, and voluntarily (id.). The allocution here met that standard. Indeed,the allocution included precisely all of the elements that were found by the Court ofAppeals in People v Bryant(28 NY3d 1094 [2016]) to have resulted in a valid waiver. First, the [*4]court turned to defendant's waiver of appeal only after itfirst reviewed the other rights that defendant was forfeiting by pleading guilty. Second, itsecured defendant's verbal confirmation that he was waiving his right to appeal. Finally,the verbal confirmation was accompanied by a written waiver that used the very samewords as were found by the Court of Appeals in Bryant to have underscored theknowingness of the defendant's waiver; i.e., "that the right to appeal is separate anddistinct from other rights automatically forfeited upon a plea of guilty" (id. at1096 [internal quotation marks omitted]). Accordingly, the waiver overcame anyambiguity in the trial court's colloquy (see People v Rodriguez, 136 AD3d 549 [1st Dept 2016],lv denied 27 NY3d 1138 [2016]).
The majority states that the court "conflated" defendant's appellate and trial rights.To the contrary, the court clearly delineated between the two:
"The Court: By pleading guilty you are giving up some rights. You are giving upyour right to remain silent in this case. You are giving up your right to suppress evidence.You are giving up your right to go to trial, to confront and cross examine witnesses at atrial and to testify on your own behalf and present a defense. Do you understandthat?
"The Defendant: Yes.
"The Court: You also would appeal this plea of any subsequent sentence, but byentering this plea, this plea of guilty on the condition that you will receive a reducedsentence of three years probation you're agreeing to give up your right to appeal thispromise as a benefit to us because normally probation is five years and you are going tobe sentenced to a three-year period of probation."
This was consistent with the waiver that the Court of Appealsupheld in People v Nicholson, one of the companion cases to People vLopez (6 NY3d at 248), observing that "the trial court engaged in a fuller colloquy,describing the nature of the right being waived without lumping that right into thepanoply of trial rights automatically forfeited upon pleading guilty and elicitingagreements of understanding from the defendant on multiple occasions" (6 NY3d at257). Notably, the waiver in Nicholson was not even supported by the "evenbetter" practice of a written waiver, which defendant here did execute, and whichexplicitly delineated between the two separate sets of rights. Considering the manner inwhich the court secured defendant's understanding that his appeal rights were separateand distinct from his trial rights, I disagree with the majority's conclusion that the trialcourt's confirmatory inquiry into whether defendant wished "to waive your right toappeal and your other rights" was sufficient to undo the waiver. Nor did the court'sexpressions of confusion about the precise sentence being offered to defendant suggestthat defendant did not understand that his waiver of his right to appeal was a quid proquo for a sentence that was more favorable than the one he would [*5]have received had he proceeded to trial.
I also disagree with the majority that the court failed to adequately apprise defendantof the significance of the right he was waiving. Unlike People v Harris (137 AD3d514, 514 [1st Dept 2016], lv denied 27 NY3d 1070 [2016]), in which "theCourt never advised defendant of the consequences of the appeal waiver, or spoke todefendant to ensure he understood the rights he was forfeiting by signing the waiver," thecontext here, where the court explicitly explained that by sacrificing his right to appealdefendant was gaining a significant reduction in his sentence, adequately conveyed thevalue of the right. Further, the majority does not take into account that "in determining whether the record demonstratesthat a defendant understood an appeal 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 oraladvice and the defendant's experience with the criminal justice system" (People vThomas, 34 NY3d at 560). Defense counsel here represented to the trial court thatthe waiver of appeal was acceptable to defendant, that he and defendant togetherexecuted the written waiver of appeal, and that defendant had authorized him to enter aguilty plea in exchange for the promised sentence, "and of course, with the understandingof waiver of Right to Appeal." There is a presumption that counsel provided competentrepresentation during plea negotiations (id., citing Lafler v Cooper, 506US 156 [2012]), and nothing in this record rebuts that presumption. Unlike People v Thorne (207 AD3d73 [1st Dept 2022]), cited by the majority, in which the record suggests thedefendant was seeing the written waiver form for the first time during the plea allocution,here counsel represented during the allocution that "we have executed the waiverof [a]ppeal." This strongly suggests that he and his client had an opportunity to review itand discuss it before the allocution even took place.
The majority maintains that the allocution here was of a markedly inferior qualitycompared to the brief allocution upheld by the Court of Appeals in Bryant. Idisagree. The only substantive difference between the allocution here and theBryant allocution, which was not, by any means, fulsome, was the latter'sreference to the "residual rights" that the appeal waiver does not affect (28 NY2d at1096). However, the failure of the court to refer to those rights constitutes, at worst, theuse of "imprecise and overbroad" language, which should not serve to invalidate theentire waiver in light of the overall context, including the written waiver, which diddelineate those rights (People v Thomas, 34 NY3d at 559).
The Court of Appeals has "drawn the line and held appeal waivers unenforceablewhere the court's advisement as to the rights relinquished was incorrect and irredeemableunder the circumstances[*6]" (id. at 562). For thereasons explained herein, the allocution here undoubtedly cleared that bar. Accordingly, Iwould not have reached the suppression issues raised by defendant.