PEOPLE v. WANN (2025)

Judgment, Supreme Court, Bronx County (Timothy W. Lewis, J.), rendered November 30, 2022, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Under the “totality of the circumstances,” defendant's waiver of the right to appeal was invalid (People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]).  There is no written waiver in the record and the transcript contains no reference to one.  The court's brief colloquy “did not adequately explain the nature of the right to appeal to defendant” (People v. Coleman, 225 A.D.3d 477, 477, 205 N.Y.S.3d 90 [1st Dept. 2024], lv denied 41 N.Y.3d 1001, 213 N.Y.S.3d 234, 236 N.E.3d 1252 [2024]).  By instructing defendant that “these days what happens is the prosecutor requires you to waive your right to appeal,” the court led defendant to “erroneously believe that the right to appeal is automatically extinguished upon entry of a guilty plea” (People v. Braithwaite, 73 A.D.3d 656, 656, 901 N.Y.S.2d 269 [1st Dept. 2010], lv denied 15 N.Y.3d 849, 909 N.Y.S.2d 27, 935 N.E.2d 819 [2010]).  Additionally, the court failed to “make clear that the right to appeal is separate and distinct from the trial rights defendant was waiving by entering a guilty plea” (People v. Cisse, 228 A.D.3d 440, 441, 212 N.Y.S.3d 606 [1st Dept. 2024]).  Under these circumstances, we find that the appeal waiver was not knowing and voluntary (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]).  However, we perceive no basis for reducing the sentence.

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Leggett, 219 A.D.3d 1253, 198 N.Y.S.3d 1 [1st Dept. 2023], lv denied 40 N.Y.3d 1081, 202 N.Y.S.3d 772, 225 N.E.3d 892 [2023];  People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.