People v. Davis

• Decision Date: 25 February 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. James DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1220
25 N.Y.S.3d 727

The PEOPLE of the State of New York, Respondent,
v.
James DAVIS, Appellant.

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

Feb. 25, 2016.

25 N.Y.S.3d 727

Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman Jr. of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.

EGAN JR., J.

136 A.D.3d 1220

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered April 24, 2006, convicting defendant upon his plea of guilty of the crime of assault in the first degree.

25 N.Y.S.3d 728

While playing cards in their cell, defendant, a prison inmate, engaged in a fight with his cellmate on April 7, 2005. Documentary evidence contained in the record on appeal reflects that the cellmate, who "appeared to have been severely beaten," died from asphyxiation due to strangulation. As a result, defendant was indicted and charged with one count of murder in the second degree (depraved indifference murder) in August 2005. In full satisfaction of that charge, defendant entered into a plea agreement that included a waiver of the right to appeal, pursuant to the terms of which defendant pleaded guilty to the reduced charge of assault in the first degree (depraved indifference assault). Consistent with that agreement, County Court thereafter sentenced defendant, as an admitted second felony offender, to 14 years in prison followed by five years of postrelease supervision, to be served consecutively to the sentence defendant then was serving. Defendant now appeals.¹

Defendant first contends that his purported waiver of the

136 A.D.3d 1221

right to appeal was not knowing, intelligent and voluntary. We agree. Although County Court elicited an oral appeal waiver from defendant, the court neither explained the meaning thereof nor inquired as to whether defendant had discussed the waiver of his appellate rights with counsel (see People v. Ashlaw, 126 A.D.3d 1236, 1237, 5 N.Y.S.3d 614 [2015] ). Similarly, while defendant signed a written appeal waiver in open court, County Court did not ask whether defendant had read the waiver, was aware of its contents or—again—had discussed it with counsel. Accordingly, we are unable to conclude that defendant appreciated the consequences of the waiver (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Rabideau, 130 A.D.3d 1094, 1094–1095, 12 N.Y.S.3d 386 [2015] ; People v. Ashlaw, 126 A.D.3d at 1237, 5 N.Y.S.3d 614 ; People v. Vences, 125 A.D.3d 1050, 1051–1052, 3 N.Y.S.3d 185 [2015] ).

Defendant next challenges the factual sufficiency of his plea, arguing that County Court failed to elicit sufficient facts to show that he acted with a depraved indifference to human life. This argument, however, is unpreserved for our review absent record evidence that defendant made an appropriate postallocution motion (see People v. Atkinson, 124 A.D.3d 1149, 1150, 2 N.Y.S.3d 687 [2015], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ; People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013], lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ). Contrary to defendant's assertion, the narrow exception to the preservation...