PEOPLE v. LI (2019)

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Nassau County (William Donnino, J.), both rendered May 15, 2017, convicting him of robbery in the second degree and burglary in the second degree under Indictment No. 311N/16, and promoting prison contraband in the first degree under Superior Court Information No. 432N/17, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

A waiver of the right to appeal “is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 N.Y.3d 248, 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).

As this Court recently articulated, “ ‘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. Batista, 167 A.D.3d 69, 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297;  see People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629).  A defendant should also “ ‘receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant's conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues ․ [and] that appellate counsel will be appointed in the event that he or she were indigent’ ” (People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297;  see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100;  People v. Alston, 163 A.D.3d 843, 843–844, 81 N.Y.S.3d 167).  Finally, “ ‘trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final’ ” (People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297;  see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100;  People v. Alston, 163 A.D.3d at 843–844, 81 N.Y.S.3d 167).  As we pointed out in Batista, the Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System's website, include a model colloquy for the waiver of the right to appeal (see People v. Batista, 167 A.D.3d at 76–77, 86 N.Y.S.3d 492).  While the use of the model colloquy is not mandatory, its use may nevertheless “substantially reduce the difficulties” (id. at 83, 86 N.Y.S.3d 492 [Scheinkman, P.J., concurring] ), provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the records of the two plea proceedings each demonstrate that the defendant understood that the appeal waivers were separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing those rights in consideration for the promised sentences (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Swen, 164 A.D.3d at 927, 82 N.Y.S.3d 100;  People v. Spitzer, 163 A.D.3d 591, 592, 76 N.Y.S.3d 410;  see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297).  Furthermore, the record of the plea proceedings each demonstrate that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Swen, 164 A.D.3d at 927, 82 N.Y.S.3d 100;  People v. Spitzer, 163 A.D.3d at 592, 76 N.Y.S.3d 410;  People v. Rocchino, 153 A.D.3d at 1284, 59 N.Y.S.3d 715;  People v. Stiles, 143 A.D.3d 747, 747, 38 N.Y.S.3d 436;  People v. Romero–Flores, 128 A.D.3d 1102, 1102, 8 N.Y.S.3d 606;  People v. McRae, 123 A.D.3d 848, 848–849, 996 N.Y.S.2d 531;  see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297).  On the record presented, the defendant knowingly, voluntarily, and intelligently waived his right to appeal from both of the judgments at issue on these appeals (see generally People v. Bradshaw, 18 N.Y.3d at 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;  People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46).  Accordingly, the defendant's valid waiver of his right to appeal from the two judgments precludes review of his challenge to the Supreme Court's suppression ruling (see People v. Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Bird, 164 A.D.3d 1357, 81 N.Y.S.3d 742).

SCHEINKMAN, P.J., MILLER, BARROS and BRATHWAITE NELSON, JJ., concur.