PEOPLE v. GRAM (2026)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered January 10, 2024, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

Under “the totality of the circumstances” defendant's waiver of the right to appeal is invalid (People v. Thomas, 34 NY3d 545, 559 [2019], cert denied 589 U.S. 1302 [2020] ), especially when considering his “history of mental illness” (People v. Bradshaw, 18 NY3d 257, 265 [2011] ).  During the oral colloquy, the court did not make clear that the waiver of the right to appeal is “separate and distinct” from the waiver of trial rights (see People v. Ellis, 194 AD3d 428, 428 [1st Dept 2021], lv denied 37 NY3d 964 [2021] ).  The written waiver did not cure the defects in the oral colloquy as “[t]he court did not confirm that defendant understood the written waiver, that he had discussed the waiver with his counsel, or even that he had read it” (People v. Thorne, 207 AD3d 73, 77 [1st Dept 2022] ).

However, the court providently exercised its discretion when it rejected the parties' proposed plea agreement (see CPL 220.10[3];  People v. Farrar, 52 N.Y.2d 302, 305 [1981] ).  The court considered and balanced the relevant circumstances, including defendant's two separate convictions for robbery in the third degree (see People v. Garcia, 215 A.D.2d 246, 246 [1st Dept 1995], lv denied 86 N.Y.2d 794 [1995] ).

Defendant's argument that he was denied due process based on the court conducting an insufficient inquiry to determine whether he violated the plea agreement “is unpreserved because he neither requested further inquiry nor moved to withdraw his plea” (People v. Stephens, 108 AD3d 414, 414 [1st Dept 2013], lv denied 21 NY3d 1077 [2013] ), and we decline to review it in the interest of justice.  As an alternative holding, we reject defendant's challenge on the merits (see People v. Fiammegta, 14 NY3d 90, 98 [2010];  People v. Outley, 80 N.Y.2d 702, 712 [1993] ).