People v. Brown,

CourtNew York Supreme Court Appellate Division
Writing for the CourtSKELOS, J.P.
Citation992 N.Y.S.2d 297
Decision Date10 September 2014
Parties The PEOPLE, etc., respondent, v. Jamarr BROWN, appellant.

992 N.Y.S.2d 297

The PEOPLE, etc., respondent,
v.
Jamarr BROWN, appellant.

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

Sept. 10, 2014.


992 N.Y.S.2d 299

Lynn W.L. Fahey, New York, N.Y., for appellant, and appellant pro se.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, and Jill Oziemblewski of counsel; Aron Gerstel on the brief; Gregory Musso on the memorandum), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

SKELOS, J.P.

The defendant, who was convicted of attempted murder in the second degree, upon his plea of guilty, seeks a reduction in his sentence, in the interest of justice, on the ground that it was excessive. During the plea allocution, the defendant purportedly waived his right to appeal, which waiver, if valid, would bar review of his claim that his sentence was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). As the Court of Appeals has observed, "an appeal waiver made as a condition of a plea arrangement facilitates the desirable objective of prompt, effective resolution of criminal litigation" (

992 N.Y.S.2d 300

id. at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Due to ambiguous or incomplete oral colloquies between defendants and the courts or the People regarding such waivers, it is frequently the case that instead of producing the intended benefit of finality, an appeal waiver merely injects into a criminal appeal an additional and difficult issue, i.e., the validity of the waiver. The purpose of appeal waivers would be better served if greater attention were given to the colloquies used in taking such waivers. Indeed, because "[g]iving up the right to appeal is not a perfunctory step" ( id. at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), the Court of Appeals has "underscore[d] the critical nature of a court's colloquy with a defendant explaining the right relinquished by an appeal waiver" ( id. at 253, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The purpose of this opinion is to encourage deliberation by the trial courts in the taking of appeal waivers, with the hope that the laudable purpose of such waivers will be achieved, and that defendants will be benefited through a better understanding of the significance of the fundamental right they are being asked to waive and the consequences of doing so.

The defendant, the father of the complainant's then-two-year-old child, went to the complainant's home to spend time with the child. An argument ensued among the defendant, the complainant, and the defendant's mother and aunt, who were also present. While the complainant was holding the child, the defendant stabbed the complainant's finger with a butter knife. The knife went through the complainant's finger and lodged in the back of the child's head. The child was transported to the hospital, where he was placed in a medically induced coma and underwent surgery to remove the knife, which was touching his brain stem. Based upon this conduct, the defendant ultimately pleaded guilty to attempted murder in the second degree, admitting that, with intent to cause the complainant's death, he had attempted to cause her death.

During the plea proceeding, the following colloquy occurred between the Supreme Court and defense counsel regarding the defendant's waiver of his right to appeal:

"THE COURT: ... [Defense counsel], you have discussed with your client the waiver of appeal and he's executed one?

"[DEFENSE COUNSEL]: I will do that."

This is the only reference on the record to the defendant's waiver of his right to appeal.

The defendant executed a written waiver of the right to appeal, which provided:

"I hereby waive my right to appeal. I execute this

waiver after being advised by the court and my attorney of the nature of the rights I am giving up. I have been advised of my right to take an appeal ( CPL 450.10 ), 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 argue before an appellate court on any issues relating to my conviction and sentence.

"I make this waiver voluntarily, knowingly and of my own free will" (emphasis added).

The waiver form is also signed by defense counsel and the Supreme Court.

The defendant was thereafter sentenced, in accordance with the plea agreement, to, inter alia, a determinate term of imprisonment of nine years. In asserting that this sentence was excessive, the defendant argues, initially, that his purported waiver of his right to appeal was invalid. We agree.

A criminal defendant's right to have a judgment of conviction and sentence, which results in a substantial

992 N.Y.S.2d 301

infringement upon his or her liberty, reviewed by an appellate court, is fundamental and significant (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. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see also CPL 450.10 ; People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541 ). Nevertheless, a defendant may waive the right to appeal as a condition of a guilty plea (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Seaberg, 74 N.Y.2d at 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ).1 "Because only a few reviewable issues survive a valid appeal waiver, it is ... important for trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Indeed, "[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). "An appellate waiver meets this standard when a defendant has ‘a full appreciation of the consequences' of such waiver" ( People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ).

Further, an appeal waiver is the intentional and voluntary relinquishment or abandonment of "a known right that would otherwise survive the guilty plea" ( People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Ahmed, 66 N.Y.2d 307, 311, 496 N.Y.S.2d 984, 487 N.E.2d 894 ) and is to be distinguished from the forfeiture of certain claims that do not survive the entry of a plea of guilty, which occurs by operation of law ( People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). It is the responsibility of the judge presiding over the plea and waiver to make it clear to the defendant 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 at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Thus, an appeal waiver is not valid where, for example, the court lumps the waiver of the right to appeal in with "the panoply of trial rights automatically forfeited upon pleading guilty," such as by misadvising the defendant: "[W]hen you plead guilty you waive your right to appeal" ( People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [internal quotation marks omitted] ).

The right to appeal need not be waived in order for a plea of guilty to be valid (see

992 N.Y.S.2d 302

People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). Accordingly, a defendant does not validly waive his or her right to appeal where the colloquy suggests that "waiving the right to appeal [is] mandatory rather than a right which the defendant [is] being asked to voluntarily relinquish" ( People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ), such as where a defendant is told: "[Y]ou're going to have to waive your right to appeal both the plea and the sentence. Do you understand that?" ( People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 [internal quotation marks omitted] ).

"The determination as to whether [the] particular waiver satisfies [the above-stated] requirements 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 nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused" ( People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). However, "before a waiver of the right to appeal may be enforced" by the Appellate Division, "the record must be examined to ensure that the waiver was voluntary, knowing and intelligent" ( id. at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Thus, it is the obligation of the trial court to " ‘make certain that [the] defendant's understanding’ of the waiver ... is...

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416 practice notes
  • People v. Batista, 2014–11805
    • United States
    • New York Supreme Court Appellate Division
    • November 7, 2018
    ...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......
  • People v. Moncrieft, 2017–00346
    • United States
    • New York Supreme Court Appellate Division
    • January 23, 2019
    ...844 N.E.2d 1145 ; see 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 wa......
  • People v. Carryl, 2017–04932
    • United States
    • New York Supreme Court Appellate Division
    • February 13, 2019
    ...844 N.E.2d 1145 ; see 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 169 A.D.3d 819that must be used in order to o......
  • People v. Corbin
    • United States
    • New York Supreme Court Appellate Division
    • October 8, 2014
    ...N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; see People v. Brown, ––– A.D.3d ––––, ––––, 992 N.Y.S.2d 297, 2014 N.Y. Slip Op. 06101, *2 [2d Dept.2014] ). The majority relies heavily on the written waiver form, which recited that the “sentence an......
  • Request a trial to view additional results
416 cases
  • People v. Batista, 2014–11805
    • United States
    • New York Supreme Court Appellate Division
    • November 7, 2018
    ...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......
  • People v. Moncrieft, 2017–00346
    • United States
    • New York Supreme Court Appellate Division
    • January 23, 2019
    ...844 N.E.2d 1145 ; see 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 wa......
  • People v. Carryl, 2017–04932
    • United States
    • New York Supreme Court Appellate Division
    • February 13, 2019
    ...844 N.E.2d 1145 ; see 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 169 A.D.3d 819that must be used in order to o......
  • People v. Corbin
    • United States
    • New York Supreme Court Appellate Division
    • October 8, 2014
    ...N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022; see People v. Brown, ––– A.D.3d ––––, ––––, 992 N.Y.S.2d 297, 2014 N.Y. Slip Op. 06101, *2 [2d Dept.2014] ). The majority relies heavily on the written waiver form, which recited that the “sentence an......
  • Request a trial to view additional results

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