People v. Bradshaw, 237.

• Decision Date: 13 December 2011
• Docket Number: No. 237.,237.
• Citation: 2011 N.Y. Slip Op. 08963,961 N.E.2d 645,938 N.Y.S.2d 254,18 N.Y.3d 257
• Parties: The PEOPLE of the State of New York, Appellant, v. Jay Jomar BRADSHAW, Respondent.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 257

2011 N.Y. Slip Op. 08963

938 N.Y.S.2d 254

961 N.E.2d 645

The PEOPLE of the State of New York, Appellant,

v.Jay Jomar BRADSHAW, Respondent.

No. 237.

Court of Appeals of New York.

Dec. 13, 2011.

Charles J. Hynes, District Attorney, Brooklyn (Maria Park and Leonard Joblove of counsel), for appellant.

Appellate Advocates, New York City (Erica Horwitz and Lynn W.L. Fahey of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, J.

In People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 (2006), we emphasized, once again, that “[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal.

I.

A Kings County grand jury indicted defendant for rape in the first degree and other related charges for an incident that allegedly occurred in the early morning hours of May 11, 2004 near an apartment complex in Brooklyn. In late June 2004, Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an “incapacitated person.” ¹

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case. The psychiatrist specifically noted that defendant “exhibit[ed] signs of regression” and was “clearly incapable presently of assistance in his defense and stands in need of further inpatient psychiatric care.” The psychiatrist also commented that despite the seriousness of the charges lodged against defendant, he appeared, at times “quite nonplussed by his predicament.” Similarly, the psychologist observed that although she believed that defendant understood more than he acknowledged, defendant could articulate “only a sketchy and inaccurate understanding of the legal process.”

On September 9, 2004, Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health. Following his commitment at the Mid–Hudson Forensic Psychiatric Center (Mid–Hudson), defendant was diagnosed with “Adjustment Disorder with Anxiety and depressed mood.” Over the next several months, he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant's psychiatrists determined that he was now competent to return to court, finding improvement in defendant's cognitive function.

Defendant's ability to proceed with his case, however, proved short-lived. In August 2005, at Supreme Court's directive, defendant submitted to a second article 730 examination and was again found unfit to proceed. The same psychiatrist who assessed defendant during the initial article 730 examination opined that “defendant is again, or still, regressed” and seemed “inaccessible” to basic reason. He further remarked that defendant's responses were “of childish quality.” Accordingly, in September 2005, Supreme Court signed a second order adjudicating defendant an incapacitated person.

While defendant's treating psychiatrists at Mid–Hudson found him fit to proceed within a month of Supreme Court's commitment order, defendant's case did not move forward in a customary fashion. From December 2005 through February 2006, defendant, who was in custody, missed five scheduled court appearances. Defense counsel explained that defendant had been adjudicated an incapacitated person on a felony matter pending in Queens County and had been committed to the same facility where defendant had been treated in connection with this case.²

Defendant finally returned to court in April 2006. Although his case had been adjourned for possible disposition over the course of that month and into May, Supreme Court ordered a third article 730 examination of defendant on May 30, 2006. A different psychiatrist and psychologist examined defendant and while they determined he was fit to proceed, the psychologist stressed that defendant was “in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases.”

From August to November 2006, defendant appeared in court on four occasions. Throughout this period, the parties advised Supreme Court that the trial courts in the Bronx and in Queens had decided to hold hearings in order to determine defendant's fitness to proceed with his cases pending in those counties. When defendant returned to court on December 11, 2006 on the instant matter, the hearings in Bronx and Queens Counties had not been completed. In any event, Supreme Court ordered defendant to submit to a fourth article 730 examination on that day.

Following defendant's February 2007 examination, he was found fit to proceed. The psychologist who evaluated defendant at this time did comment, however, that while defendant was “able to discuss [his cases] and consider his options ... effective and consistent psychiatric treatment is paramount in maintaining [his] stability and competence.” On February 26, 2007, defendant initially contested the results of this examination and requested a hearing on the matter. Approximately three weeks later, defendant withdrew his request for a hearing and Supreme Court confirmed the results.

In the 12 months that ensued, the parties conducted plea negotiations and apprised the court on the status of defendant's other open cases. Finally, on February 5, 2008, Supreme Court presided over a suppression hearing to determine the admissibility of certain identification testimony. After the hearing, the court denied defendant's suppression motion, concluding that the People could introduce complainant's identification of defendant in a lineup at trial.

The next day, defendant pleaded guilty to first-degree rape in exchange for a promised determinate sentence of nine years imprisonment followed by five years postrelease supervision. The record reveals that Supreme Court only made fleeting references to defendant's appeal waiver. At the outset of the proceeding, the court enumerated the conditions of the guilty plea, including defendant's waiver of his right to appeal. The court briefly outlined that an appeal waiver “means, the conviction here is final, that there is not a higher court you can take [the case] to.” When Supreme Court inquired whether defendant understood, defendant only asked the court to clarify its explanation of the mandatory fees associated with his guilty plea. Supreme Court neither confirmed whether defendant comprehended its terse explanation of the nature of the appeal waiver nor did it mention that defendant possessed an inherent right to appeal a judgment of conviction and sentence.

After Supreme Court ascertained that defendant spoke English, it addressed defendant's previous confinement for “mental illness” and questioned whether defendant felt “well today, psychologically.” Defendant responded, “Yes.” The court also received assurance from defendant that he had not ingested any alcohol or controlled substances impairing his ability to understand these proceedings. The court further explained the rights associated with a jury trial and that defendant's decision to plead guilty would extinguish this right. Defendant acknowledged that he understood this right that he was forgoing.³

Next, the court inquired, “other than what I have already promised you, which is the nine years [imprisonment], five years postrelease supervision, waiver of [the] right to appeal, and $270 in fees and fines, has anybody else made any other promise to you in order to get you to plead guilty?” Defendant said, “No” and further stated he had not been threatened or coerced into pleading guilty. Once defendant allocuted to the first-degree rape charge, the court accepted the plea. Right before it adjourned the case for sentencing, Supreme Court simply asked whether the written waiver of the right to appeal had been signed. Defense counsel affirmed that the form had been executed by defendant in his presence and handed it to the court. The court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it.

The written waiver in this case consists of three sections. The first section, signed by defendant, indicates, in part, that “I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up.” The form further states that “I have been advised of my right to take an appeal [and] to prosecute the appeal as a poor person.” The second section, signed by defense counsel, says, in part, that “I represent that prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal” in New York. The third section, signed by Supreme Court, states, “[h]aving examined the defendant in open court and on the record, it is the Court's opinion that the defendant has knowingly and freely waived the right to appeal. Waiver is approved.”

At sentencing, defendant sought to withdraw his guilty plea. He maintained that his attorney misinformed him about the parameters of the plea and he had actually been promised a “MICA [Mentally Ill/Chemically Addicted] therapeutic program.” Supreme Court denied defendant's request to withdraw his guilty plea and sentenced defendant, a first-time felony offender, as promised. In addition, the court imposed a supplemental sex offender fee. ⁴

The Appellate Division, with two Justices dissenting, reversed the judgment of conviction and sentence. The court held that de...