PEOPLE v. CRUZ (2026)

Judgment, Supreme Court, New York County (Anne Swern, J.), rendered September 28, 2023, convicting defendant, upon his plea of guilty, of Robbery in the Third Degree and Grand Larceny in the Fourth Degree (two counts) and sentencing him respectively to concurrent indeterminate prison terms of three and one-half to seven years, two to four years, and two to four years, unanimously affirmed.

Defendant's waiver of his right to appeal was not made knowingly, intelligently, and voluntarily (see 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. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  People v. Johnson, 14 N.Y.3d 483, 486–487, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010]).  Although there is no mandatory litany that must be used to obtain a valid waiver of the right to appeal (Johnson, 14 N.Y.3d at 486, 903 N.Y.S.2d 299, 929 N.E.2d 361), when using the trial context to illustrate the waiver the court improperly suggested that the right to appeal was conditioned upon going to trial (see People v. Colon, 219 A.D.3d 1256, 195 N.Y.S.3d 478 [1st Dept. 2023] [court's explanation improperly suggested that the right to appeal was “limited to review of trial errors”];  cf.  People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [finding the waiver invalid where the court made the “misleading” statement that “when you plead guilty you waive your right of appeal.”]).  The detailed written waiver that defendant executed with counsel cannot save the confusing nature of the court's oral colloquy, “as a written waiver is not a complete substitute for an on-the-record explanation” (People v. Bonilla, 211 A.D.3d 614, 615, 180 N.Y.S.3d 162 [1st Dept. 2022] [internal quotation marks omitted]).

However, we perceive no basis for reducing the sentence.