People v. Davis, 2016–07122

• Court: New York Supreme Court Appellate Division
• Citation: 82 N.Y.S.3d 150,164 A.D.3d 827
• Decision Date: 22 August 2018
• Parties: The PEOPLE, etc., respondent, v. Rashan DAVIS, appellant.
• Docket Number: Ind. No. 1348/15,2016–07122

164 A.D.3d 827
82 N.Y.S.3d 150

The PEOPLE, etc., respondent,
v.
Rashan DAVIS, appellant.

2016–07122
Ind. No. 1348/15

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

August 22, 2018

82 N.Y.S.3d 151

Paul Skip Laisure, New York, N.Y. (Laura B. Indellicati of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Blira–Koessler of counsel; Victoria Randall on the memorandum), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin–Brandt, J.), imposed June 30, 2015, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant entered into a plea agreement pursuant to which he pleaded guilty to one count of attempted assault in the second degree (see Penal Law §§ 110.00, 120.05[6] ). The defendant received an indeterminate sentence of two to four years' imprisonment in accordance with the plea agreement. On appeal, the defendant contends that his sentence of imprisonment was excessive. The People contend that

82 N.Y.S.3d 152

the defendant's argument is precluded by the defendant's waiver of his right to appeal and that, in any event, the defendant's sentence of incarceration was not excessive.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid.

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,id. 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. 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 waiver of appellate rights" ( People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

"[A] thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being...