People v. Batista

• Decision Date: 07 November 2018
• Docket Number: 2014–11805,Ind. No. 910/11
• Citation: 167 A.D.3d 69,86 N.Y.S.3d 492
• Parties: The PEOPLE, etc., Respondent, v. Anardo BATISTA, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 69

86 N.Y.S.3d 492

The PEOPLE, etc., Respondent,

v.Anardo BATISTA, Appellant.

2014–11805

Ind. No. 910/11

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

Submitted—March 30, 2018

November 7, 2018

Paul Skip Laisure, New York, N.Y. (A. Alexander Donn of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and Anastasia Spanakos of counsel; Eleanor Reilly on the memorandum), for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

LEVENTHAL, J.

The defendant was convicted, upon his plea of guilty, of robbery in the first degree, and his plea of guilty included a waiver of his right to appeal. The defendant appeals, as limited by his motion, from the sentence solely on the ground that the sentence was excessive. "[W]hen a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Therefore, we must determine whether the defendant validly waived his right to appeal. Although we hold that the defendant validly waived his right to appeal, precluding review of his contention that the sentence imposed was excessive, we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal.

On November 5, 2010, codefendant Jorge Paret ordered a pizza to be delivered to a certain location in Queens. Paret and the defendant planned to take property from the delivery person. When the delivery person (hereinafter the victim) arrived by scooter, Paret beat the victim and took the victim's wallet. Paret told the defendant to get the bat that was in Paret's truck. The defendant used the bat to strike the victim's head many times. The defendant then drove away on the victim's scooter. The victim was treated for multiple skull fractures

and bleeding in his brain, and he underwent two brain surgeries.

The defendant, as part of a negotiated disposition, entered a plea of guilty to robbery in the first degree and was promised a sentence of a determinate term of imprisonment of 14, 15, 16, or 17 years plus 5 years of postrelease supervision.

During the plea proceeding, there was discussion regarding the defendant waiving his right to appeal:

"THE COURT: All right. Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. Is there a right to appeal form executed here? Please uncuff the defendant.

"MR. WEINSTEIN [defense counsel]: He executed the waiver of appeal, your Honor.

"THE COURT: Mr. Batista, I have this form in front of me, the waiver of your right to appeal. Did you just sign that?

"THE DEFENDANT: Yes, sir.

"THE COURT: Did you discuss this with your attorney Mr. Weinstein before you signed it?

"THE DEFENDANT: Yes, sir.

"THE COURT: Did you understand all of those discussions?

"THE DEFENDANT: Yes.

"THE COURT: Were you satisfied with those discussions?

"THE DEFENDANT: Yes, sir.

"THE COURT: Did you sign this of your own free will, sir?

"THE DEFENDANT: Yes, sir.

"THE COURT: You realize that by waiving your right to appeal—Mr. Batista, when I am talking to you, look at me.

"THE DEFENDANT: I'm sorry.

"THE COURT: By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. And you signed this waiver of your own free will?

"THE DEFENDANT: Yes, sir."

A form, entitled "Waiver of Right to Appeal and Other Rights," bearing the signatures of the defendant, defense counsel, and the Supreme Court, reads, in part:

"1. Waiver of Right to Appeal: I acknowledge that I have been advised of, and waive, my right to appeal from the judgment of conviction or sentence. This includes, but is not limited to, my right to prosecute the appeal as a poor person and to have an attorney assigned in the event that I am indigent, and to submit a brief and/or have argument before the appellate court on any issues relating to the conviction and sentence.

"This waiver applies to all issues that may validly be waived."

Thereafter, the Supreme Court rendered the judgment of conviction, sentencing the defendant to a determinate term of imprisonment of 16 years plus 5 years of postrelease supervision.

The defendant appeals, as limited by his motion, from the sentence. He contends that he did not validly waive his right to appeal and that the sentence imposed was excessive and should be reduced as a matter of discretion in the interest of justice.

In New York, a criminal defendant has the right to appeal from a judgment of conviction and sentence (see People v. Yavru–Sakuk, 98 N.Y.2d 56, 59, 745 N.Y.S.2d 787, 772 N.E.2d 1145 ; People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). However, that "right to appeal may be waived as a condition of a sentence or plea bargain" ( People v. Seaberg, 74 N.Y.2d 1, 5, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). To say that a defendant may waive the right to appeal means not that the defendant gives up the right to take an appeal, but that the defendant gives up the right to have the appellate court review most claims of error as well as whether the sentence imposed was excessive (see William C. Donnino, Supplemental Practice Commentaries, 2012 Waiver of appellate review, McKinney's Cons. Laws of N.Y., CPL 450.10 ). While a valid waiver of the right to appeal does not preclude appellate review of certain claims, "generally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process’ " ( People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145, quoting People v. Hansen , 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ). "Because only a few reviewable issues survive a valid appeal waiver, it is all the more important for trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal. Giving up the right to appeal is not a perfunctory step" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

"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. ). "An appellate waiver meets this standard when a defendant has a full appreciation of the consequences of such waiver. To that end, a defendant must comprehend that an appeal waiver is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [citation and internal quotation marks omitted] ).

A trial court must review the waiver and determine whether it is voluntary, knowing, and intelligent "by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused" ( People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [internal quotation marks omitted] ). "The trial court must also ensure that defendant's full appreciation of the consequences and understanding of the terms and conditions of the plea, including a waiver of the right to appeal, are apparent on the face of the record" ( id. at 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [internal quotation marks omitted] ).

Here, the defendant validly waived his right to appeal (see People v. Sanders , 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 ). The defendant answered in the affirmative when the Supreme Court asked, "Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal." The court's phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement. The defendant also answered in the affirmative when the court later asked, "By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?" This question provided some explanation of the nature of the right to appeal and the consequences of waiving it, and was met with an affirmative response. Additionally, the defendant acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will. Granted, whether the appeal waiver is valid in this case presents a very close question given, inter alia, that the on-the-record explanation of the nature of the right to appeal and the consequences of waiving it was terse and included no reference to a higher court or the Appellate Division; the defendant had a limited education, having stopped attending school in the eighth grade; and he had minimal prior experience with the criminal justice system, having been adjudicated a youthful offender but not having been convicted of a felony previously. Nonetheless, the record before us, consisting of the oral colloquy and the detailed written waiver, sufficiently demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.

People v. Ramos , 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 supports our conclusion. In Ramos, the defendant executed a written waiver that "explained the appellate...