PEOPLE v. MEDINA (2018)

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin Murphy, J.), imposed April 1, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

On appeal, the defendant contends that his sentence of 21/212 to 5 years' imprisonment on his conviction of burglary in the third degree was excessive.  The People argue that the defendant's contention is precluded by the defendant's waiver of his right to appeal.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid.

A waiver of the right to appeal “is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (id. at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297).  Although the Court of Appeals has “repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights” (People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361), “[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it” (People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297;  see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715;  People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709).  “[A] thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right” (People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297).

Here, the record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295;  People v. Black, 144 A.D.3d 935, 935–936, 41 N.Y.S.3d 126;  People v. Pacheco, 138 A.D.3d 1035, 1036, 28 N.Y.S.3d 627;  People v. Gordon, 127 A.D.3d 1230, 1230, 5 N.Y.S.3d 900;  People v. Cantarero, 123 A.D.3d 841, 841, 996 N.Y.S.2d 724;  People v. Bennett, 115 A.D.3d 973, 973, 982 N.Y.S.2d 554).  Furthermore, although the record on appeal reflects that the defendant executed written appeal waiver forms, the transcript of the plea proceedings shows that the court did not ascertain on the record whether the defendant had read the waivers or discussed them with defense counsel, or whether he was even aware of their contents (see People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297;  see also People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295;  People v. Black, 144 A.D.3d at 936, 41 N.Y.S.3d 126;  People v. Pacheco, 138 A.D.3d at 1036, 28 N.Y.S.3d 627).  Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297;  see generally People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222;  People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

Nevertheless, contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).