People v. Corbin

• Citation: 121 A.D.3d 803,2014 N.Y. Slip Op. 06838,993 N.Y.S.2d 746
• Decision Date: 08 October 2014
• Docket Number: 2012-05109, Ind. No. 102/11.
• Court: New York Supreme Court Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Alvin CORBIN, appellant.

121 A.D.3d 803

993 N.Y.S.2d 746

2014 N.Y. Slip Op. 06838

The PEOPLE, etc., respondent

v.Alvin CORBIN, appellant.

2012-05109, Ind. No. 102/11.

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

Oct. 8, 2014.

Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Arieh Schulman of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Foley, J., at plea; Riviezzo, J., at sentencing), rendered April 27, 2012, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he validly waived his right to appeal at the time he entered his plea of guilty. The record of the plea proceedings reveals that, after acknowledging the various trial rights that he was forfeiting as a consequence of his plea of guilty, the defendant allocuted to the offense of attempted criminal possession of a weapon in the third degree. The Supreme Court then questioned the defendant with regard to a printed waiver of appeal form that he had signed, ascertaining that the defendant had received a sufficient opportunity to discuss the waiver with his attorney, that he acknowledged that the waiver was not a legal requirement of every plea but had been negotiated as part of this particular plea, and that he understood that he was giving up the right to appeal “any issue that may arise from this case except certain constitutional issues.” Likewise, the printed waiver form recited that the right to appeal was “separate and distinct” from the defendant's trial rights, and was not automatically waived by a plea of guilty, but that the waiver of appeal was a condition of this particular plea agreement and that the resultant conviction and sentence would be final. Based on its questioning, the court found that the defendant's waiver of the right to appeal was knowing, voluntary and intelligent, and it executed the form in open court.

Notwithstanding the foregoing, the defendant challenges the propriety of the Supreme Court's denial, after a hearing, of that branch of his omnibus motion which was to suppress certain physical evidence. In this regard, he contends that his waiver of the right to appeal was invalid because “the court never explained ... the constitutional issues that could be appealed despite the waiver, or the constitutional issues that were unappealable by virtue of the waiver” and, thus, it “created uncertainty concerning the constitutional issues forfeited by the appeal waiver.” However, the record demonstrates that the waiver of appeal was valid and entitled to enforcement, since it establishes that the defendant appreciated the consequences of the waiver and knowingly and voluntarily accepted them (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

When the Supreme Court correctly advised the defendant that some constitutional issues would survive his waiver (see People v. DeSimone, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ), the defendant indicated that he understood the meaning of this information. He did not express any confusion or question the court or his attorney (with whom he had an adequate opportunity to discuss the matter) regarding the waiver, nor did he inquire as to whether any particular issue would survive the waiver. Contrary to the defendant's contention, the court was not required to enumerate each and every potential appellate argument that the defendant might still possibly be able to raise despite the waiver, as nothing in the law places such an unrealistic burden upon the court. Similarly, there was no requirement that the defendant expressly waive every potential claim or defense (see People v. Muniz, 91 N.Y.2d 570, 574–575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ; People v. Abdul, 112 A.D.3d 644, 645, 976 N.Y.S.2d 187 ) in order to produce a valid, unrestricted waiver of the right to appeal that was knowing, voluntary, and intelligent, and which encompassed all waivable issues (see People v. Ceparano, 96 A.D.3d 774, 775, 945 N.Y.S.2d 421 ; People v. Galunas, 93 A.D.3d 892, 893, 939 N.Y.S.2d 196 ). Rather, no particular litany by the court was required (see People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 ), and the waiver herein clearly covered all aspects of the case (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ), including the challenged suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ).

Additionally, the Supreme Court did not merely rely on the defendant's execution of the printed waiver form, but conducted an adequate waiver inquiry on the record (cf. People v. DeSimone, 80 N.Y.2d at 282–283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Moreover, the court took care not to group the right to appeal with the trial rights automatically forfeited as the consequence of a plea of guilty (cf. People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Accordingly, the defendant's valid waiver of his right to appeal precludes review of his contention that the hearing court erred in denying suppression (see People v. Kemp,

94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Mackey, 109 A.D.3d 1008, 971 N.Y.S.2d 478 ; People v. Bennett, 102 A.D.3d 881, 957 N.Y.S.2d 905 ; People v. Palmer, 95 A.D.3d 1039, 943 N.Y.S.2d 775 ; People v. Foy, 89 A.D.3d 1103, 933 N.Y.S.2d 599 ).

MASTRO, J.P., SGROI and LaSALLE, JJ., concur.

BALKIN, J., dissents, and votes to reverse the judgment, grant that branch of the defendant's motion which was to suppress a handgun, and dismiss the indictment, with the following memorandum.

At the plea proceeding, the Supreme Court's explanation of the waiver of the right to appeal created a significant ambiguity as to the scope of the waiver. That ambiguity was never resolved, and I conclude that it renders the waiver unenforceable, thus permitting us to review the merits of the defendant's suppression claim. Moreover, I conclude that the defendant's suppression claim has merit. Accordingly, I respectfully dissent, and would reverse the judgment, allow the defendant to withdraw his plea of guilty, and grant the defendant's suppression motion.

To be sure, “no public policy preclud[es] defendants from waiving their rights to appeal as a condition of [a] plea” (People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). Nonetheless, to be enforceable, an appeal waiver must be voluntary, knowing and intelligent (see id. at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Callahan, 80 N.Y.2d 273, 276, 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 257, 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. Brown, 122 A.D.3d 133, 135–37, 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 and conviction will be final.” As the majority also points out, however, the Supreme Court told the defendant, among other things, that he was surrendering the right to raise on appeal “any issue that may arise from this case except certain constitutional issues.” There was no explanation of what those “certain constitutional issues” might have been. The majority, however, concludes that “the court was not required to enumerate each and every potential appellate argument that the defendant might still possibly be able to raise despite the waiver, as nothing in the law places such an unrealistic burden upon the court.”

I agree that the Supreme Court was not required to enumerate every constitutional issue that survives a waiver. But, viewed in the context of this case, the court's oral statement, which contradicted the written form, created an important ambiguity that needed to be resolved. The only contested issue in this case was the constitutional issue pertaining to the warrantless search that resulted in the seizure of the gun. Accordingly, I conclude that, in light of its statement that “certain constitutional issues” survived the waiver, the court was required to tell the defendant that his constitutional suppression issue would not survive.

The record does not reflect that the defendant had a “full appreciation of the consequences” of the waiver (People v. Seaberg,

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