People v. Coverdale, 2018–08707

• Court: New York Supreme Court Appellate Division
• Citation: 189 A.D.3d 1610,136 N.Y.S.3d 335
• Decision Date: 30 December 2020
• Parties: The PEOPLE, etc., respondent, v. Andre COVERDALE, appellant.
• Docket Number: Ind. No. 16–00070,2018–08707

189 A.D.3d 1610
136 N.Y.S.3d 335

The PEOPLE, etc., respondent,
v.
Andre COVERDALE, appellant.

2018–08707
Ind. No. 16–00070

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

Submitted—September 25, 2019
December 30, 2020

136 N.Y.S.3d 336

Randall Richards, Bronxville, NY, for appellant, and appellant pro se.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

189 A.D.3d 1610

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered May 23, 2018, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, citing People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The Supreme Court's colloquy mischaracterized the nature of the right to appeal by stating that "the case ends here," thereby suggesting that the waiver may be an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d at 558–559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Habersham, 186 A.D.3d 854, 127 N.Y.S.3d 775 ; People v. Valentin, 186 A.D.3d 752, 127 N.Y.S.3d 283 ; People v. Howard, 183 A.D.3d 640, 121 N.Y.S.3d 622 ). Although the colloquy included a statement that "certain things always survive," it did not contain "any clarifying language that the defendant retained the right to take an appeal after pleading guilty and that, even after waiving the right to appeal, appellate

136 N.Y.S.3d 337

review remained available for select issues, including the voluntariness of the plea and the appeal waiver, legality of the sentence, and the jurisdiction of the court" ( People v. Habersham, 186 A.D.3d at 854, 127 N.Y.S.3d 775 ). Thus, the defendant's purported waiver of his right to appeal was invalid and does not preclude appellate review of his excessive sentence claim (see People v. Valentin, 186...