People v. Bryant

Decision Date01 March 2016
Citation26 N.Y.S.3d 58,137 A.D.3d 401
Parties The PEOPLE of the State of New York, Respondent, v. Jeffrey BRYANT, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

Robert S. Dean, Center for Appellate Litigation, (David J. Klem of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, (Joshua L. Haber of counsel), for respondent.

TOM, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 17, 2014, convicting defendant, upon his plea of guilty, of four counts of grand larceny in the fourth degree, and sentencing him to four consecutive terms of one to three years, modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentence for the conviction under count three of the indictment be served concurrently with the other sentences, and otherwise affirmed.

We first find that defendant's waiver of his right to appeal was invalid. A waiver of the right to appeal is not effective unless it is apparent from the record that it was made knowingly, intelligently and voluntarily (People v. Lopez, 6 N.Y.3d 248, 256, 844 N.E.2d 1145 [2006] ). For a waiver to be effective, the record must demonstrate that the defendant has a full appreciation of the consequences of the waiver (People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ), including an understanding "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Similarly, a waiver is not effective if the "trial court characterizes an appeal as one of many rights automatically extinguished upon entry of a guilty plea" (id. ).

Here, the court never adequately explained the nature of the waiver, the rights the defendant would be waiving, or that the right to appeal was separate and distinct from the rights automatically forfeited upon a plea of guilty. Rather, the court merely stated that "as a part of this"—that is, as part of the guilty plea-defendant was waiving his right to appeal and thus, that the convictions would be final because no appellate court would review them. Despite our dissenting colleague's suggestion otherwise, the problem with the waiver's validity is not that there was "some ambiguity in the court's colloquy." Rather, by using the phrase "as a part of this," the trial court expressly undercut the principle that a defendant must understand his waiver of appeal to be distinct from the rights forfeited upon a guilty plea (see People v. McCree, 113 A.D.3d 557, 557–558, 979 N.Y.S.2d 67 [1st Dept.2014] ; People v. Williams, 59 A.D.3d 339, 341, 874 N.Y.S.2d 63 [1st Dept.2009], lv. denied 12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ).

Further, the dissent places undue emphasis on the existence of the written waiver. As we have held, the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal (see People v. Oquendo, 105 A.D.3d 447, 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] ). This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the waiver only "after being advised by the Court," it is not evident from the record whether defendant signed the waiver before the colloquy regarding his right to appeal, or whether he signed it after. Accordingly, the waiver was invalid and unenforceable (Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Santiago, 119 A.D.3d 484, 990 N.Y.S.2d 494, [1st Dept.2014] ).

After giving due consideration to the defendant's particular circumstances, we exercise our discretion to modify the sentence to the extent indicated (see People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; Penal Law § 1.05[6] ).

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

TOM, J.P. (dissenting).

The record contradicts the majority's conclusion that defendant was not properly apprised of the implications of waiving his right to appeal. Thus, defendant's valid waiver of the right to appeal forecloses appellate review of his excessive sentence claim (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

The record discloses that upon accepting defendant's guilty plea, the court, in a lengthy plea allocution, engaged in the following colloquy:

"THE COURT: All right. Sir, you understand that also as a part of this you are waiving your right to appeal. You understand that this conviction, or these convictions will be final, that a court will not review what we have done here, other than some residual rights that remain?
"Do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Have you gone over that with your attorney?
"THE DEFENDANT: Yes.
"THE COURT: There is a document entitled waiver of appeal. I see that you executed that document. Do you have any questions about it?
"THE DEFENDANT: No."

This language tracks the same colloquy that provided for a valid waiver in People v. Nicholson, one of the cases consolidated under People v. Lopez, 6 N.Y.3d 248, 254–255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 (2006), and, with the written waiver in this case, even exceeds Nicholson. In the written waiver, signed both by defendant and his attorney, defendant expressly acknowledges as follows: "I understand that the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty." Further, "I also understand that by waiving my right to appeal, I am giving up the right to raise on appeal a number of claims that I could otherwise raise even after a guilty plea. In particular, I understand that I am waiving my right to ask the Appellate Division to review the terms of the plea and reduce my sentence, and my right to appeal the denial of any suppression motion I made." Finally, "I execute and sign this waiver knowingly, intelligently and voluntarily" and "have had a full opportunity to discuss these matters with my attorney and any questions I may have had have been answered to my satisfaction." After defendant acknowledged that he had gone over the terms of the document with his attorney, the court asked if he had any questions regarding the waiver, to which defendant responded, "No." I conclude that this colloquy is clearly adequate under Nicholson for the enforcement of the waiver of appeal by defendant.

A defendant who has validly waived his right of appeal may not invoke this Court's interest-of-justice jurisdiction to reduce a bargained—for sentence (People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), particularly where the waiver is documented by a writing. "By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including...

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4 cases
  • People v. Bryant
    • United States
    • New York Court of Appeals Court of Appeals
    • 20 Diciembre 2016
    ...Division, with one Justice dissenting, found that "defendant's waiver of his right to appeal was invalid" (People v. Bryant, 137 A.D.3d 401, 401, 26 N.Y.S.3d 58 [2016] ). We disagree.The allocution in this case was similar in effect to the allocution this Court found sufficient in both Peop......
  • People v. Bryant
    • United States
    • New York Court of Appeals Court of Appeals
    • 20 Diciembre 2016
    ...Division, with one Justice dissenting, found that "defendant's waiver of his right to appeal was invalid" (People v. Bryant, 137 A.D.3d 401, 401, 26 N.Y.S.3d 58 [2016] ). We disagree.The allocution in this case was similar in effect to the allocution this Court found sufficient in both Peop......
  • People v. Bryant
    • United States
    • New York Court of Appeals Court of Appeals
    • 23 Junio 2016
    ...Slip Op. 77407The PEOPLE etc., Appellant,v.Jeffrey BRYANT, Respondent.Court of Appeals of New York.June 23, 2016.Reported below, 137 A.D.3d 401, 26 N.Y.S.3d 58. Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, N......
  • People v. Bryant
    • United States
    • New York Court of Appeals Court of Appeals
    • 23 Junio 2016
    ...Slip Op. 77407The PEOPLE etc., Appellantv.Jeffrey BRYANT, Respondent.Court of Appeals of New York.June 23, 2016.Reported below, 137 A.D.3d 401, 26 N.Y.S.3d 58. Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, Ne......

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