Skip Laisure, New York, NY (Samuel Barr of counsel), for
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove
and Victor Barall of counsel; Robert Ho on the memorandum),
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY,
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by the defendant, as limited by his motion, from a sentence
of the Supreme Court, Kings County (Cassandra Mullen, J.),
imposed September 21, 2016, upon his plea of guilty, on the
ground that the sentence was excessive.
that the sentence is affirmed.
defendant pleaded guilty to one count of attempted criminal
possession of a weapon in the third degree (see
Penal Law §§ 110.00, 265.02). He was sentenced,
as a second felony offender, to an indeterminate term of
imprisonment of two to four years. On appeal, the defendant
contends that his sentence of imprisonment was excessive. The
People argue that the defendant's contention is precluded
by the defendant's waiver of his right to appeal.
defendant who has validly waived the right to appeal cannot
invoke this Court's interest of justice jurisdiction to
obtain a reduced sentence (see People v Lopez, 6
N.Y.3d 248, 255). Here, however, this Court is not precluded
from exercising its interest of justice jurisdiction because
the defendant's purported waiver of his right to appeal
waiver of the right to appeal "is effective only so long
as the record demonstrates that it was made knowingly,
intelligently and voluntarily" (People v Lopez,
6 N.Y.3d at 256; see People v Bradshaw, 18 N.Y.3d
257, 264; People v Brown, 122 A.D.3d 133, 136).
Although the Court of Appeals has repeatedly observed that
there is no mandatory litany that must be used in order to
obtain a valid waiver of appellate rights (see People v
Johnson, 14 N.Y.3d 483, 486), "[t]he best way to
ensure that the record reflects that the right is known and
intentionally relinquished by the defendant is to fully
explain to the defendant, on the record, the nature of the
right to appeal and the consequences of waiving it"
(People v Brown, 122 A.D.3d at 142; see People v
Rocchino, 153 A.D.3d 1284; People v Blackwood,
148 A.D.3d 716, 716).
thorough explanation should include an advisement that, while
a defendant ordinarily retains the right to appeal even after
he or she pleads guilty, the defendant is being asked, as a
condition of the plea agreement, to waive that right"
(People v Brown, 122 A.D.3d at 144). "[A]
defendant should [also]... receive an explanation of the
nature of the right to appeal, which essentially advises that
this right entails the opportunity to argue, before a higher
court, any issues pertaining to the defendant's
conviction and sentence and to have that higher court decide
whether the conviction or sentence should be set aside based
upon any of those issues... [and] that appellate counsel will
be appointed in the event that he or she were indigent"
(id.). Finally, "trial courts should then
explain the consequences of waiving the right to appeal,
i.e., that the conviction and sentence will not receive any
further review, and shall be final" (id.).
Supreme Court did not provide the defendant with an
explanation of the nature of the right to appeal or explain
the consequences of waiving that right. In addition, nothing
in the record shows that the defendant understood the
distinction between the right to appeal and other trial
rights forfeited incident to his plea of guilty (see
People v Santeramo, 153 A.D.3d 1286; People v
Black, 144 A.D.3d 935, 935-936; People v
Pacheco, 138 A.D.3d 1035, 1036; People v
Gordon, 127 A.D.3d 1230, 1230; People v
Cantarero, 123 A.D.3d 841, 841; People v
Bennett, 115 A.D.3d 973, 973). While the defendant was
represented by counsel during the plea proceedings, counsel
did not participate during the proceedings other than to
acknowledge to the court that he was the defendant's
attorney, and counsel did not sign the defendant's
written appeal waiver form. Furthermore, although the record
on appeal reflects that the defendant signed the written
appeal waiver form, a written waiver "is not a complete
substitute for an on-the-record explanation of the nature of
the right to appeal" (People v Bradshaw, 76
A.D.3d 566, 569, affd 18 N.Y.3d 257; see People
v Cuevas-Alcantara, 136 A.D.3d at 650; People v
Brown, 122 A.D.3d at 138-139; People v Keiser,
100 A.D.3d 927, 928). The court's colloquy amounted to
nothing more than a simple confirmation that the defendant
signed the waiver and a conclusory statement that the
defendant understood the waiver or was executing it knowingly
and voluntarily (see People v Burnett-Hicks, 133
A.D.3d 773, 774; People v Cantarero, 123 A.D.3d at
841-842; People v Brown, 122 A.D.3d at 140). Under
the circumstances here, we conclude that the defendant did
not knowingly, voluntarily, and intelligently waive his right
to appeal (see People v Brown, 122 A.D.3d 133;
see generally People v Bradshaw, 18 N.Y.3d at
264-267; People v Ramos, 7 N.Y.3d 737, 738;
People v Lopez, 6 N.Y.3d at 255).
contrary to the defendant's contention, the sentence
imposed was not excessive (see ...