People v. Bryant

137 A.D.3d 401, 26 N.Y.S.3d 58

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2016
• Docket: 15497 5646/2013
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 17, 2014, convicting defendant, upon his plea of guilty, of four counts of grand larceny in the fourth degree, and sentencing him to four consecutive terms of 1 to 3 years, modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentence for the conviction under count three of the indictment be served concurrently with the other sentences, and otherwise affirmed.

We first find that defendant’s waiver of his right to appeal was invalid. A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily (People v Lopez, 6 NY3d 248, 256 [2006]). For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver (People v Bradshaw, 18 NY3d 257 [2011]), including an understanding “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” [Lopez, 6 NY3d at 256). Similarly, a waiver is not effective if the “trial court characterizes an appeal as one of many rights automatically extinguished upon entry of a guilty plea” {id.).

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that “as a part of this”—that is, as part of the guilty plea—defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague’s suggestion otherwise, the problem with the waiver’s validity is not that there was “some ambiguity in the court’s colloquy.” Rather, by using the phrase “as a part of this,” the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea (see People v McCree, 113 AD3d 557, 557-558 [1st Dept 2014]; People v Williams, 59 AD3d 339, 341 [1st Dept 2009], lv denied 12 NY3d 861 [2009]).

Further, the dissent places undue emphasis on the existence of the written waiver. As we have held, the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal (see People v Oquendo, 105 AD3d 447 [1st Dept 2013], lv denied 21 NY3d 1007 [2013]). This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only “after being advised by the Court,” it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. Accordingly, the waiver was invalid and unenforceable (Lopez, 6 NY3d at 256; People v Santiago, 119 AD3d 484 [1st Dept 2014]).

After giving due consideration to the defendant’s particular circumstances, we exercise our discretion to modify the sentence to the extent indicated (see People v Farrar, 52 NY2d 302, 305 [1981]; Penal Law § 1.05 [6]).

Concur—Renwick, Moskowitz, Manzanet-Daniels and Feinman, JJ.