People v. Bonilla

• Decision Date: 22 December 2022
• Docket Number: 16545,Ind. No. 2567N/15,Case No. 2017-1280
• Parties: The PEOPLE of the State of New York, Respondent, v. James BONILLA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 614

180 N.Y.S.3d 162

The PEOPLE of the State of New York, Respondent,

v.James BONILLA, Defendant-Appellant.

16545

Ind. No. 2567N/15

Case No. 2017-1280

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

Entered December 22, 2022

Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent.

Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J. at motions; Patricia M. Nuñez, J. at plea and sentencing), rendered April 21, 2016, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him to 3 years’ probation, reversed, on the law, the judgment and the denial of the motion to controvert the search warrant vacated, and the matter remanded for further proceedings on that motion.

Defendant did not validly waive his right to appeal "because the court did not make clear that the right to appeal is separate and distinct from the numerous other trial rights automatically forfeited upon pleading guilty" ( People v. Ellis , 194 A.D.3d 428, 428, 143 N.Y.S.3d 210 [1st Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 765, 171 N.E.3d 241 [2021] ). Specifically, the court conflated defendant's appellate and trial rights by asking the defendant "[i]s that what you wish to do to waive your right to appeal and your other rights ... by pleading guilty[?]" Instead, the majority of the court's colloquy of defendant's appellate rights focused on sentencing, on which the court itself needed clarification, not in differentiating trial from appellate rights.

Moreover, the court made other errors in its oral colloquy that further justify invalidating defendant's waiver of his appellate rights. Specifically, the court failed to advise defendant of the nature of the right to appeal ( People v. Lopez , 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Harris , 137 A.D.3d 514, 514, 27 N.Y.S.3d 26 [1st Dept. 2016], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ["the Court never advised defendant of the consequences of the appeal waiver, or spoke to defendant to ensure he understood the rights he was forfeiting"]), erroneously mischaracterized the finality of the waiver ( People v. Thomas , 34 N.Y.3d 545, 554-556, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ), and failed to discuss the written waiver form with defendant ( People v. Acosta , 133 A.D.3d 506, 507, 20 N.Y.S.3d 358 [1st Dept. 2015] [invalidating an appellate waiver due to court's failure to establish that the defendant signed it and was aware of its contents]; cf. People v. Bryant , 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] [affirming appellate waiver partially due to trial court's separate advisement to the defendant on the written waiver form]; Harris , 137 A.D.3d at 514, 27 N.Y.S.3d 26 ). The detailed written waiver that defendant executed with counsel cannot save the numerous errors in the court's oral colloquy, as " ‘a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal’ " ( People v. Oquendo , 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 [1st Dept. 2013], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013], quoting People v. Bradshaw , 76 A.D.3d 566, 569, 906 N.Y.S.2d 93 [2d Dept. 2010], affd 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).

We agree that one must look at the totality of the circumstances to determine whether defendant's waiver of appellate rights was knowing, intelligent and voluntary and that there is no requirement for a court to pose a mandatory, minimal litany of questions to ensure the validity of such a waiver. Nonetheless, we must also be mindful that for a defendant, "[g]iving up the right to appeal is not a perfunctory step" ( Lopez , 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The dissent asserts that our analysis of the plea allocution is narrowly focused. It is not. We are engaging in the holistic test outlined in ( Thomas , 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Under such analysis, we have recently invalidated a waiver of appeal, despite the defendant signing a virtually identical written waiver form as here, where "[t]he court did not confirm that defendant understood the written waiver, that he had discussed the waiver with his counsel, or even that he had read it" ( People v. Thorne , 207 A.D.3d 73, 77, 169 N.Y.S.3d 63 [1st Dept. 2022] ). In our view, the position advocated by the dissent cannot be reconciled with Thorne . Here, the deficiencies in the appeal waiver colloquy are strikingly similar as the court never asked defendant if he agreed to sign the form, let alone if he read it, understood it or even discussed its contents with counsel. Instead, the court merely asked defense counsel if defendant signed the waiver form.

The dissent, citing People v. Bryant , states that the appeal waiver met the holistic approach advanced by the Court of Appeals. However, while the written waiver form here may have used the very same words as that in Bryant , the plea court's colloquy was markedly deficient in the aggregate. First, the plea court in Bryant directly allocuted the defendant on the written waiver form by asking "[t]here is a document entitled waiver of appeal. I see that you executed that document. Do you have any questions about it?" to which the defendant replied "No" ( Bryant, 28 N.Y.3d at 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ). Rather, here the court relied on defense counsel's responses regarding the execution of the written waiver form. Moreover, in Bryant , the plea court further clarified the finality of defendant's written waiver by noting that "some residual rights remain" ( id. ). In contrast, here, the court never discussed defendant's residual rights (i.e., four issues that survive a waiver of appeal, namely: a constitutional speedy trial claim; a challenge to the legality of the sentence; issues of defendant's competency to stand trial; and the voluntariness of the appeal waiver) but merely told defendant that by waiving his right to appeal "[t]hat means that this plea of guilty and the sentence will be final." These and other errors render defendant's appeal waiver incomparable to that presented in Bryant .

Finally, absent "on-the-record acknowledgements of [defendant's clear] understanding" ( Thomas , 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 ) of his appellate rights waiver, the presumption of defense counsel's competent representation during the plea negotiations is simply insufficient to overcome the court's deficient colloquy ( id. ). Accordingly, we find that this waiver of appeal is invalid and therefore does not foreclose review of defendant's underlying suppression claims.

The court properly denied defendant's motion for a Mapp/Dunaway hearing. A court may summarily deny a motion to suppress if "[t]he sworn allegations of fact do not as a matter of law support the ground alleged" ( CPL 710.60[3][b] ). "[C]onclusory allegations of a general constitutional violation or lack of probable cause are of no avail in meeting the statutory requirements for entitlement to a hearing" ( People v. Jones , 95 N.Y.2d 721, 726, 723 N.Y.S.2d 761, 746 N.E.2d 1053 [2001], citing People v. Mendoza , 82 N.Y.2d 415, 431, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). Here, defendant was not entitled to a hearing based on his conclusory assertions that the search and seizure violated his federal and state constitutional rights or that he was arrested without probable cause.

However, the court should not have denied defendant's motion to controvert the search warrant sua sponte due to lack of standing. Where a defendant seeks to suppress evidence on the grounds that it was obtained by means of an illegal search, they "must allege standing to challenge the search and, if the allegation is disputed , must establish standing" ( People v. Carter , 86 N.Y.2d 721, 723, 631 N.Y.S.2d 116, 655 N.E.2d 157 [1995] [emphasis added]). Here, the People never disputed that defendant had standing to challenge the search warrant. Therefore, the court should not have denied the motion "based on a ground not raised by the People" ( People v. Hatchett , 196 A.D.3d 431, 431, 147 N.Y.S.3d 406 [1st Dept. 2021] ). Furthermore, the People's current arguments on appeal are precluded by ( People v. LaFontaine , 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998] ) because the suppression court did not rule upon these issues, and this Court may not affirm on those alternative grounds (see People v. Holmes , 170 A.D.3d 532, 533, 97 N.Y.S.3d 1 [1st Dept. 2019] ).

All concur except Mazzarelli, J. who dissents in a memorandum as follows:

Mazzarelli, J. (dissenting).

A waiver of the right to appeal is enforceable "so long as the totality of the circumstances reveals that the defendant understood the nature of the appellate rights being waived" ( People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Thus, the Court of Appeals "has not ... set forth the absolute minimum that must be conveyed to a pleading defendant in the plea colloquy in order for the right to appeal to be validly waived" ( People v. Sanders , 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Nor must a trial court "engage in any particular litany when apprising a defendant pleading guilty" of the implication of his waiver of an appeal ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

The majority engages in an analysis of the plea allocution in this case that is narrowly focused on the particulars of the exchange between the court, counsel and defendant, instead of...