People v. Bradshaw
Decision Date | 10 August 2010 |
Citation | 906 N.Y.S.2d 93,76 A.D.3d 566 |
Parties | The PEOPLE, etc., respondent, v. Jay Jomar BRADSHAW, appellant. |
Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
STEVEN W. FISHER, J.P., HOWARD MILLER, RANDALL T. ENG, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mullen, J.), rendered May 5, 2008, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.
ORDERED that the judgment is reversed, on the law, the plea is vacated, the identification testimony is suppressed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
On the day after the Supreme Court denied suppression of identification testimony, the defendant agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. During the course of the ensuing plea allocution, the Supreme Court advised the defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal, as follows:
Although the defendant was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the defendant instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result ofhis conviction. The defendant did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the defendant whether he understood the explanation, and he replied "yes." The defendant further stated, in response to the Supreme Court's inquiry, that although he had previously been confined to a hospital for mental illness, he now felt well psychologically. At the conclusion of the plea allocution, the Supreme Court asked whether a written waiver of the right to appeal had been signed, and defense counsel handed the Supreme Court a waiver form, stating that the defendant had executed the waiver form, and that counsel had witnessed it. Nowhere in this record is there any indication that, prior to signing the waiver, the defendant had been advised of his right to take an appeal, that the defendant understood the nature of the waiver, or that the defendant's waiver was executed voluntarily and knowingly. To the contrary, the defendant claimed, at sentencing, that his attorney had coerced him into pleading guilty and had misinformed him of the consequences of doing so, and claimed that his attorney had not provided him "with the proper paperwork," but instead led him to believe that he would "receive a MICA [Mental Illness and Controlled-Substance Abuse] therapeutic program." Additionally, the Supreme Court did not question the defendant about the writtenwaiver, and did not ascertain on the record that he understood its contents.
On appeal, the defendant contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first felony offender with a history of mental illness, understood it and was validly waiving his right to appeal. We agree.
In People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022, the Court of Appeals first recognized that "the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal," observing that "the negotiating process serves little purpose if the terms of a carefully orchestrated bargain can subsequently be challenged" (internal quotation marks omitted). However, "the Seaberg opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made" ( People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108, citing People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). This determination must be made in the first instance by the trial court, which is in the best position to assess all of the relevant factors, including the reasonableness of the bargain, and the age and experience of the accused ( see People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Appellate courts are also entrusted with the responsibility to oversee the plea bargaining process, and must examine the record to ensure that the defendant's waiver of the right to appeal reflects a knowing and voluntary choice ( see People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108). "While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record" ( People v. DeSimone, decided sub nom. People v. Callahan, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108).
In People v. DeSimone, the prosecutor informed the trial court that the defendant had signed a written waiver of the right to appeal his sentence as a condition of his plea agreement. However, the court made no mention of the written waiver during the plea allocution. In finding that the waiver was unenforceable, the Court of Appeals noted that there was no record discussion between the trial court and the defendant concerning the waiver, and that the trial court had not even made an attempt "to ascertain on the record an acknowledgment from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents" ( People v. DeSimone, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). Furthermore, there was nothing on the record to establish thatthe trial court was familiar with the circumstances surrounding the execution of the written waiver. Under these circumstances, the Court of Appeals concluded that "there is no assurance that the waiver was executed under constitutionally acceptable circumstances" ( id.).
In the case at bar, we are mindful of the fact that the written waiver signed by the defendant recited that he had been advised by the Supreme Court and by his attorney of the "nature of the rights" he was giving up, and explained that the right to appeal included, inter alia, the right to prosecute the appeal as a poor person, the right to have an attorney assigned in the event the defendant was indigent, and the right to submit a brief and/or argue before an appellate court any issues relating to the defendant's conviction and sentence. Contrary to the conclusion reached by the dissent, we find, and the Court of Appeals has held, that a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right. Here, the Supreme Court did not, as the dissent concludes, engage in a "detailed inquiry" of the defendant but instead, explained the waiver of the right to appeal in an extremely perfunctory manner. Indeed, the Supreme Court merely stated that "the conviction here is final, that there is not a higher court you can take it to." While a detailed written waiver can supplement a trial court's on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222), the execution of a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently, and voluntarily giving up his or her right to appeal as a condition of the plea agreement.
Furthermore, despite the fact that the subject waiver form stated that it was signed after the Supreme Court advised the defendant of the "nature of the rights" he was giving up, there is no indication in the record that this was indeed the case. Rather, it appears that the defendant signed the written waiver prior to the commencement of the plea proceeding. Finally, in evaluating whether the record is sufficient to demonstrate a knowing, intelligent, and voluntary waiver of the right to appeal, it cannot be overlooked that, at the time he entered his plea, the 23-year-old defendant had never previously been convicted of a felony, and that he suffered from mental illness to such a severe degree that the prosecution was delayed on several occasions because of findings that he was unfit to proceed. Additionally, nowhere in the record did the defendant explicitlystate that he waived his right to appeal. Considering all of these circumstances, we cannot conclude on this record that the defendant understood the implications of the waiver of the right to...
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