PEOPLE v. SLADE (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered June 14, 2018, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends that the enhanced sentence he received after he failed to appear for a probation department interview and a scheduled sentencing date was excessive. The People argue that appellate review of the defendant's contention is precluded because he waived his right to appeal.

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. Ayala, 172 A.D.3d 1085, 1086, 100 N.Y.S.3d 334; People v. Carryl, 169 A.D.3d 818, 819, 93 N.Y.S.3d 703).

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. Swen, 164 A.D.3d 926, 927, 82 N.Y.S.3d 100; People v. Davis, 164 A.D.3d 827, 828, 82 N.Y.S.3d 150; People v. Spitzer, 163 A.D.3d 591, 592, 76 N.Y.S.3d 410; 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 at 927, 82 N.Y.S.3d 100; People v. Davis, 164 A.D.3d at 828, 82 N.Y.S.3d 150; People v. Spitzer, 163 A.D.3d at 592, 76 N.Y.S.3d 410). As this Court 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 record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Etienne, 152 A.D.3d 790, 790, 59 N.Y.S.3d 427; People v. Cuevas–Alcantara, 136 A.D.3d 650, 650, 23 N.Y.S.3d 902). The County Court's terse colloquy during the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right (see People v. Moncrieft, 168 A.D.3d 982, 984, 92 N.Y.S.3d 335; People v. Neilson, 167 A.D.3d 779, 780, 90 N.Y.S.3d 78). Although the defendant executed a written appeal waiver form, a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal (see People v. Anderson, 170 A.D.3d 739, 741, 95 N.Y.S.3d 274; People v. Latham, 162 A.D.3d 1068, 1070, 80 N.Y.S.3d 128). Moreover, the defendant was not informed of the maximum sentence that could be imposed if he failed to comply with the conditions of his plea agreement (see People v. Juwan L.D., 167 A.D.3d 645, 646, 86 N.Y.S.3d 907; People v. McNeil, 164 A.D.3d 608, 608, 78 N.Y.S.3d 682; People v. Yodice, 153 A.D.3d 1373, 1374, 59 N.Y.S.3d 898). Thus, the purported appeal waiver does not preclude appellate review of the defendant's contention that the enhanced sentence was excessive.

Nevertheless, under the circumstances, the enhanced sentence was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

SCHEINKMAN, P.J., RIVERA, ROMAN and CHRISTOPHER, JJ., concur.