The opinion of the court was delivered by: Mercure, J.P.
Calendar Date: May 12, 2010
Before: Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered November 24, 2008, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.
Following his participation in a gunfight in which two bystanders were shot, defendant pleaded guilty to one count of attempted criminal possession of a weapon in the second degree. County Court thereafter sentenced defendant, as agreed, to a prison term of five years to be followed by five years of postrelease supervision. During the plea colloquy, defendant signed a waiver of the right to appeal in open court after counsel indicated that he had reviewed the waiver with defendant and signed it as well. In addition, we note that County Court, in explaining the terms of the plea agreement to defendant, indicated that he "would have to waive or give up [his] right to appeal, but in return, all other charges would be satisfied. Do you understand?" In response, defendant questioned only the details of the length of his sentence.
Although County Court improperly failed to distinguish the right to appeal from the rights that defendant forfeited upon pleading guilty, we note that defendant's detailed written waiver of the right to appeal explained the nature of the right and the appellate process, contained an acknowledgment that he had discussed the right and the consequences of waiving it with counsel, and stated that he was waiving the right voluntarily. Given defendant's thorough written waiver, the court's inquiry of defendant -- albeit minimal -- coupled with counsel's assurances that he had reviewed the written waiver with defendant and the execution of the written waiver in open court were adequate to demonstrate both that there was "some judicial examination of the waiver itself with a manifestation expressed on the record" (People v Calvi, 89 NY2d 868, 871 ) and that "defendant's waiver of the right to appeal reflect[ed] a knowing and voluntary choice" (People v Callahan, 80 NY2d 273, 280 ; see People v Johnson, 14 NY3d 483, 486 n ; People v Muniz, 91 NY2d 570, 575 ).*fn1 Accordingly, defendant's argument that his sentence is harsh and excessive, which is his sole claim on this appeal, is barred by his valid waiver of the right to appeal (see People v Ramos, 7 NY3d 737, 738 ; People v McKenzie, 66 AD3d 1056, 1056 ; People v Robles, 53 AD3d 686, 687-688 , lv denied 11 NY3d 794 ; People v Lewis, 48 AD3d 880, 881 ; People v Romano, 45 AD3d 910, 914-916 , lv denied 10 NY3d 770 ; cf. People v Callahan, 80 NY2d at 283).
Peters and Kavanagh, JJ., concur.
I write separately to explain our view that the record on appeal does not afford a sufficient basis upon which to conclude that defendant's waiver of the right to appeal was knowing, intelligent or voluntary. While the requirement that defendant waive his right to appeal was generically recited up front as a term of the plea agreement and defendant signed a written waiver in open court, nothing on "the face of the record" reflects -- as it must -- defendant's understanding of the meaning of that condition of the plea agreement, so as to permit its enforcement (People v Callahan, 80 NY2d 273, 280 ; accord People v Lopez, 6 NY3d 248, 256 ; People v Seaberg, 74 NY2d 1, 11 ).
"Giving up the right to appeal is not a perfunctory step" (People v Lopez, 6 NY3d at 256). There is no dispute that a waiver of the right to appeal, whether done orally during a plea colloquy or in combination with a written waiver, will be enforced only when the record actually demonstrates that it was knowingly, voluntarily and intelligently made, a determination necessarily made, in the first instance, by the trial court (see People v Lopez, 6 NY3d at 256; People v Callahan, 80 NY2d at 280; People v Seaberg, 74 NY2d at 11). While eschewing "any particular litany," the Court of Appeals has steadfastly adhered to the principle that "a defendant's understanding of the terms and conditions of the plea agreement [must be] evident on the face of the record" (People v Lopez, 6 NY3d at 256 [emphasis added]; accord People v Johnson, 14 NY3d 483, 486 ; People v Callahan, 80 NY2d at 280). This requirement stems, in part, from the fact that "appellate courts also have the responsibility to oversee the process and to review the record to ensure that the defendant's waiver of the right to appeal reflects a knowing and voluntary choice" (People v Callahan, 80 NY2d at 280). If the defendant's understanding is not adequately reflected in a colloquy on the record, informed appellate review is simply not possible.
What must, in any given case, be reflected on the record about a defendant's understanding of an appeal waiver when he or she executes a written appeal waiver in open court is the subject of ongoing debate. At one end, a "silent record" will not suffice and, thus, where a defendant reportedly signs an appeal waiver outside of court and there is "no record discussion between the court and [the] defendant concerning the waiver," it is ineffective (id. at 283). There must be "some judicial examination of the waiver itself with a manifestation expressed on the record, as may be appropriate . . . to show satisfaction of [Court of Appeals'] protocols" (People v Calvi, 89 NY2d 868, 871 ). Thus, in our view, the content of the written waiver cannot, by itself, establish the defendant's understanding or satisfy the court's duty of inquiry. On the other end, in People v Lopez (supra) the Court of Appeals recommended the practice of combining an in-court execution of a written appeal waiver with a concomitant detailed colloquy.
While the Court of Appeals has not offered specific guidance on what must be discussed -- on the record -- when a defendant is executing a written appeal waiver, its decisions are instructive. At a minimum, we firmly believe that there must be some record discussion between the defendant, counsel and the court concerning the appeal waiver, in which the defendant acknowledges the signature (or signs in open court) and -- directly or through counsel -- expresses an awareness and understanding of its content. This can be accomplished, by way of example, by the court providing an explanation on the record or by an on-the-record indication that counsel previously discussed the matter with the defendant. Under any scenario, however, the defendant's understanding must be reflected, e.g., by assurance that he or she has no questions on the matter either for the court or counsel (see People v Callahan, 80 NY2d at 283; see e.g. People v Mosher, 45 AD3d 970, 970 , lv denied 10 NY3d 814 ). Thus, whether the defendant's appeal waiver occurs solely as part of the oral plea colloquy, or is accompanied by a written waiver, the overriding consideration and prerequisite are that the defendant's understanding of that condition of the plea, as with all others, be "apparent on the face of the record" (People v Callahan, 80 NY2d at 280). This is not a test or a "mandatory litany" (People v Johnson, 14 NY3d at 486) or a "a uniform mandatory catechism" (People v Seeber, 4 NY3d 780, 781  [internal quotation marks and citation omitted]) but, rather, a principle by which appeal waivers may be competently reviewed on appeal. It should not be relegated to a mere "recommendation" to trial courts.
People v Ramos (7 NY3d 737 ), a memorandum decision often cited in cases in which there is a written appeal waiver, is not to the contrary. Nothing in Ramos supports the conclusion either (1) that a written appeal waiver alone can ever be adequate, or (2) that the Court eliminated the long-standing requirement in People v Seaberg (74 NY2d at 11) and its progeny that the defendant's understanding must be reflected "upon the record." In all cases, the record and colloquy must be "sufficient to guarantee that [the] defendant understood the valued right [he or she] was relinquishing" (People v Lopez, 6 NY3d at 257).
Requiring trial courts to engage in a limited inquiry of a defendant (and counsel) who is executing a written appeal waiver will also insure that oral colloquies by trial judges accepting appeal waivers are not summarily dispensed with and replaced by written appeal waivers (often containing other lengthy plea conditions) drafted by prosecutors, which may not be fully explained to or understood by the accused. Indeed, we have condemned the practice of "plea by check off list" in which writings containing waivers and agreements are "substituted for on-the-record discussions between the defendant and the court" (People v McDermott, 68 AD3d 1453, 1454 ). We reiterated that -- aside from a written waiver -- courts have a "constitutional responsibility to review the terms and conditions of the plea agreement, the defendant's rights and those rights that the defendant is giving up and the concomitant responsibility to ascertain that the defendant understands them and is knowingly, intelligently and voluntarily waiving them [all of which] must appear 'on the face of the record'" (id. at 1454, quoting People v Lopez, 6 NY3d at 256). Mandating a ...