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The People &C v. Jay Jomar Bradshaw

December 13, 2011


The opinion of the court was delivered by: Ciparick, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In People v Lopez (6 NY3d 248 [2006]), we emphasized, once again, that "[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" (6 NY3d at 256). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal.


A Kings County grand jury indicted defendant for rape in the first degree and other related charges for an incident that allegedly occurred in the early morning hours of May 11, 2004 near an apartment complex in Brooklyn. In late June 2004, Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an "incapacitated person."*fn1

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case. The psychiatrist specifically noted that defendant "exhibit[ed] signs of regression" and was "clearly incapable presently of assistance in his defense and stands in need of further inpatient psychiatric care." The psychiatrist also commented that despite the seriousness of the charges lodged against defendant, he appeared, at times "quite nonplussed by his predicament." Similarly, the psychologist observed that although she believed that defendant understood more than he acknowledged, defendant could articulate "only a sketchy and inaccurate understanding of the legal process."

On September 9, 2004, Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health. Following his commitment at the Mid-Hudson Forensic Psychiatric Center (Mid-Hudson), defendant was diagnosed with "Adjustment Disorder with Anxiety and depressed mood." Over the next several months, he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant's psychiatrists determined that he was now competent to return to court, finding improvement in defendant's cognitive function.

Defendant's ability to proceed with his case, however, proved short-lived. In August 2005, at Supreme Court's directive, defendant submitted to a second article 730 examination and was again found unfit to proceed. The same psychiatrist who assessed defendant during the initial article 730 examination opined that "defendant is again, or still, regressed" and seemed "inaccessible" to basic reason. He further remarked that defendant's responses were "of childish quality." Accordingly, in September 2005, Supreme Court signed a second order adjudicating defendant an incapacitated person.

While defendant's treating psychiatrists at Mid-Hudson found him fit to proceed within a month of Supreme Court's commitment order, defendant's case did not move forward in a customary fashion. From December 2005 through February 2006, defendant, who was in custody, missed five scheduled court appearances. Defense counsel explained that defendant had been adjudicated an incapacitated person on a felony matter pending in Queens County and had been committed to the same facility where defendant had been treated in connection with this case.*fn2

Defendant finally returned to court in April 2006. Although his case had been adjourned for possible disposition over the course of that month and into May, Supreme Court ordered a third article 730 examination of defendant on May 30, 2006. A different psychiatrist and psychologist examined defendant and while they determined he was fit to proceed, the psychologist stressed that defendant was "in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases."

From August to November 2006, defendant appeared in court on four occasions. Throughout this period, the parties advised Supreme Court that the trial courts in the Bronx and in Queens had decided to hold hearings in order to determine defendant's fitness to proceed with his cases pending in those counties. When defendant returned to court on December 11, 2006 on the instant matter, the hearings in the Bronx and in Queens Counties had not been completed. In any event, Supreme Court ordered defendant to submit to a fourth article 730 examination on that day.

Following defendant's February 2007 examination, he was found fit to proceed. The psychologist who evaluated defendant at this time did comment, however, that while defendant was "able to discuss [his cases] and consider his options . . . effective and consistent psychiatric treatment is paramount in maintaining [his] stability and competence." On February 26, 2007, defendant initially contested the results of this examination and requested a hearing on the matter. Approximately three weeks later, defendant withdrew his request for a hearing and Supreme Court confirmed the results.

In the 12 months that ensued, the parties conducted plea negotiations and apprised the court on the status of defendant's other open cases. Finally, on February 5, 2008, Supreme Court presided over a suppression hearing to determine the admissibility of certain identification testimony. After the hearing, the court denied defendant's suppression motion, concluding that the People could introduce complainant's identification of defendant in a lineup at trial.

The next day, defendant pleaded guilty to first-degree rape in exchange for a promised determinate sentence of nine years imprisonment followed by five years postrelease supervision. The record reveals that Supreme Court only made fleeting references to defendant's appeal waiver. At the outset of the proceeding, the court enumerated the conditions of the guilty plea, including defendant's waiver of his right to appeal. The court briefly outlined that an appeal waiver "means, the conviction here is final, that there is not a higher court you can take [the case] to." When Supreme Court inquired whether defendant understood, defendant only asked the court to clarify its explanation of the mandatory fees associated with his guilty plea. Supreme Court neither confirmed whether defendant comprehended its terse explanation of the nature of the appeal waiver nor did it mention that defendant possessed an inherent right to appeal a judgment of conviction and sentence.

After Supreme Court ascertained that defendant spoke English, it addressed defendant's previous confinement for "mental illness" and questioned whether defendant felt "well today, psychologically." Defendant responded, "Yes." The court also received assurance from defendant that he had not ingested any alcohol or controlled substances impairing his ability to understand these proceedings. The court further explained the rights associated with a jury trial and that defendant's decision to plead guilty would extinguish this right. Defendant acknowledged that he understood this right that he was foregoing.*fn3

Next, the court inquired, "other than what I have already promised you, which is the nine years [imprisonment], five years postrelease supervision, waiver of the right to appeal and $270 in fees and fines, has anybody else made any other promises to you in order to get you to plead guilty?" Defendant said, "No" and further stated he had not been threatened or coerced into pleading guilty. Once defendant allocuted to the first-degree rape charge, the court accepted the plea. Right before it adjourned the case for sentencing, Supreme Court simply asked whether the written waiver of the right to appeal had been signed. Defense counsel affirmed that the form had been executed by defendant in his presence and handed it to the court. The court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it.

The written waiver in this case consists of three sections. The first section, signed by defendant, indicates, in part, that "I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up." The form further states that "I have been advised of my right to take an appeal [and] to prosecute the appeal as a poor person." The second section, signed by defense counsel, says, in part, that "I represent that prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal" in New York. The third section, signed by Supreme Court, states, "[h]aving examined the defendant in open court and on the record, it is the Court's opinion that the defendant has knowingly and freely waived the right to appeal. Waiver is approved."

At sentencing, defendant sought to withdraw his guilty plea. He maintained that his attorney misinformed him about the parameters of the plea and he had actually been promised a "MICA [Mental Illness and Controlled Substance Abuse] therapeutic program." Supreme Court denied defendant's request to withdraw his guilty plea and sentenced defendant, a first time felony offender, as promised. In addition, the court imposed a supplemental sex offender fee.*fn4

The Appellate Division, with two Justices dissenting, reversed the judgment of conviction and sentence. The court held that defendant's appeal waiver was unenforceable "because [] Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first time felony offender with a history of mental illness, understood it and was validly waiving his right to appeal" (People v Bradshaw, 76 AD3d 566, 568 [2d Dept 2010]). While the majority acknowledged that, in certain instances, "a detailed written waiver can supplement a trial court's on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation," it concluded, given Supreme Court's "extremely perfunctory" discussion of the waiver, that this was not such a case (id. at 569). Having determined that defendant retained his right to appeal the denial of his suppression motion, the court further agreed with defendant that complainant's lineup identification of defendant should have been suppressed since the "hearing record is inadequate to establish that his arrest was supported by probable cause" (id. at 570). Finally, the court noted that Supreme Court erred in imposing the supplemental sex offender fee "because the crime was committed prior to the effective date" of the statute providing for such fee (id. at 573).

The dissenting Justices would have modified the judgment of conviction and sentence to the extent that it was improper for Supreme Court to impose a supplemental sex offender fee, and, as so modified, would have affirmed (see id. at 581). The dissenters, relying on this Court's holding in People v Ramos (7 NY3d 737 [2006]), concluded that Supreme Court's colloquy with defendant during the plea proceeding, combined with the executed written waiver form, demonstrated that "defendant effectively waived his right to appeal," foreclosing any "review of the denial of suppression of identification testimony" (id. at 579). Notwithstanding this position, the dissenters also opined that Supreme Court's denial of defendant's suppression motion was appropriate since the hearing record sufficiently established that defendant was in lawful custody at the time that complainant identified him in the lineup (see id. at 580-581).

A Justice of the Appellate Division granted the People leave to appeal (15 NY3d 896 [2010]) and we now affirm.


It is well settled that plea bargaining is "a vital part of our criminal justice system" (People v Seaberg, 74 NY2d 1, 7 [1989]). "In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition" (id.). Of course, plea bargaining "necessarily includes the surrender of many guaranteed rights," such as "the right to a jury trial or the privilege against self-incrimination" (id.). Citing the United States Supreme Court's decision in Schick v United States (195 US 65, 72 [1904]), we observed that absent a constitutional or statutory mandate or public policy considerations, "an accused may waive any right ...

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