PEOPLE v. ANONYMOUS (2004)

Appeal from judgment, Supreme Court, New York County (Carol Berkman, J. at suppression hearing;  Brenda Soloff, J. at plea and sentence), rendered January 3, 2002, convicting defendant of criminal possession of a controlled substance in the second degree, and sentencing him to a term of 7 years to life, and appeal from judgment, same court (Laura Visitacion-Lewis, J. at plea;  Brenda Soloff, J. at sentence), rendered January 3, 2002, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him to a concurrent term of 6 to 18 years, held in abeyance, and the People are directed to file a supplemental brief addressing defendant's substantive claims.

Contrary to the People's claim, the record does not provide a sufficient basis for a conclusion that defendant's waiver of his right to appeal was knowing, intelligent or voluntary (see People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843 [1996] ).   While defendant acknowledged and executed before the court a cooperation agreement containing a waiver of appeal, there was no mention of the waiver on the record.   Thus, the court did not make a determination, “apparent on the face of the record,” that defendant understood the terms of the waiver (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).

Defendant raises three substantive issues, which were not addressed by the People.   A review of the record shows that the arguments are non-frivolous.   Accordingly, the People are directed to submit a supplemental brief responding to defendant's substantive claims (see 12 NYCRR § 600.16[b] ).