People v. Ayala, 2017–03461

• Court: New York Supreme Court Appellate Division
• Citation: 172 A.D.3d 1085,100 N.Y.S.3d 334
• Docket Number: Ind.No. 6936/15,2017–03461
• Parties: The PEOPLE, etc., Respondent, v. Eduardo AYALA, Appellant.
• Decision Date: 15 May 2019

172 A.D.3d 1085
100 N.Y.S.3d 334

The PEOPLE, etc., Respondent,
v.
Eduardo AYALA, Appellant.

2017–03461
Ind.No. 6936/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 23, 2019
May 15, 2019

100 N.Y.S.3d 335

Paul Skip Laisure, New York, N.Y. (Melissa S. Horlick of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross, Brooklyn, of counsel; Marielle Burnett on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

100 N.Y.S.3d 336

DECISION & ORDER

172 A.D.3d 1085

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), imposed March 10, 2017, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant entered into a plea agreement pursuant to which he pleaded guilty to burglary in the third degree and robbery in the third degree. He was sentenced, in accordance with the plea agreement, to an indeterminate term of 3½ to 7 years' imprisonment on each conviction, with both sentences of imprisonment to run consecutively to each other.

On appeal, the defendant contends that the sentence imposed was excessive. The People argue that review of the defendant's contention is precluded because he waived 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 ). However, 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

172 A.D.3d 1086

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...