People v. Eduardo S., 2019–00382

CourtNew York Supreme Court Appellate Division
Parties The PEOPLE, etc., Respondent, v. EDUARDO S. (Anonymous), Appellant.
Decision Date02 September 2020
Docket Number2019–00382,Ind. No. 1393/18

186 A.D.3d 1265
129 N.Y.S.3d 483

The PEOPLE, etc., Respondent,
v.
EDUARDO S. (Anonymous), Appellant.

2019–00382
Ind.
No. 1393/18

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

Submitted—July 29, 2020
September 2, 2020


129 N.Y.S.3d 484

Paul Skip Laisure, New York, N.Y. (Paris C. DeYoung of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Christopher Blira–Koessler of counsel; Eleanor Reilly on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

186 A.D.3d 1266

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Lenora Gerald, J.), imposed November 28, 2018, 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 robbery in the third degree. He was adjudicated a youthful offender and sentenced to a three-year period of conditional discharge.

On appeal, the defendant contends that the sentence imposed was excessive. The People argue that appellate review of the defendant's contention is precluded because he waived his right to appeal, and that, in any event, the defendant's sentence was not excessive.

"In New York, a criminal defendant has the right to appeal from a judgment of conviction and sentence" ( People v. Batista, 167 A.D.3d 69, 72, 86 N.Y.S.3d 492 ; see CPL 450.10 ). However, a defendant may waive, as a condition of a plea agreement, "the right to have the appellate court review most claims of error as well as whether the sentence imposed was excessive" ( People v. Batista, 167 A.D.3d at 73, 86 N.Y.S.3d 492 ; see William C. Donnino, 2012 Supp Practice Commentaries, McKinney's Cons. Laws of N.Y., CPL 450.10 ). Although such a waiver is often characterized as "a waiver of appeal, which suggests an absolute relinquishment of all appellate opportunity, [it] is in reality a

129 N.Y.S.3d 485

limitation on the issues that may be effectively reviewed on appeal" ( People v. Batista, 167 A.D.3d at 79, 86 N.Y.S.3d 492 [Scheinkman, P.J., concurring]; see People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ).

A valid waiver that broadly limits the scope of appeal will generally preclude appellate review of "any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process’ " ( People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145, quoting People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; see People v. Batista, 167 A.D.3d at 73, 86 N.Y.S.3d 492 ). Even after executing such a waiver, however, "a defendant [still] retains the right to appellate review of ... the voluntariness of the plea and appeal waiver, legality of the sentence and the jurisdiction of the court" ( People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Christopher B., 184 A.D.3d 657, 125 N.Y.S.3d 149 ).

A waiver that limits the scope of appellate review "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 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

186 A.D.3d 1267

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[s] [are] 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 [those appellate rights]" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Rocchino, 153 A.D.3d 1284, 1284–1285, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

The Court of Appeals has stated that "when a trial court has utterly ‘mischaracterized the nature of...

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13 practice notes
  • People v. Bisono, No. 97 SSM 14
    • United States
    • New York Court of Appeals
    • December 15, 2020
    ...495 (2d Dept. 2020)30. People v. Walder, 186 A.D.3d 1272, 127 N.Y.S.3d 894 (2d Dept. 2020)36 N.Y.3d 1029 31. People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 (2d Dept. 2020)32. People v. Cipolla, 186 A.D.3d 1136, 127 N.Y.S.3d 368 (4th Dept. 2020)33. People v. Williams, 186 A.D.3d 111......
  • People v. Momoh, 2018–12551
    • United States
    • New York Supreme Court — Appellate Division
    • March 17, 2021
    ...34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211 ; People v. Eduardo S., 186 A.D.3d 1265, 1267–1268, 129 N.Y.S.3d 483 ; People v. Howard, 183 A.D.3d at 640, 121 N.Y.S.3d 622 ). As the Court of Appeals has recently reiterated, "[t]......
  • People v. Guerrero, 110405
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 2021
    ...187 A.D.3d 781, 130 N.Y.S.3d 331 [2020], lv denied 36 N.Y.3d 972, 138 N.Y.S.3d 470, 162 N.E.3d 699 [2020] ; People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 340, 159 N.E.3d 1107 [2020] ). Accordingly, we decline to set aside the waiver up......
  • People v. Wright, 2021–00009
    • United States
    • New York Supreme Court Appellate Division
    • November 24, 2021
    ...N.Y.S.3d 815 remained available for select issues (see People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Eduardo S., 186 A.D.3d 1265, 1267–1268, 129 N.Y.S.3d 483 ; People v. Leiva, 184 A.D.3d 731, 731, 124 N.Y.S.3d 207 ; cf. NY Model Colloquies, Waiver of Right to Appeal). ......
  • Request a trial to view additional results
13 cases
  • People v. Bisono, No. 97 SSM 14
    • United States
    • New York Court of Appeals
    • December 15, 2020
    ...495 (2d Dept. 2020)30. People v. Walder, 186 A.D.3d 1272, 127 N.Y.S.3d 894 (2d Dept. 2020)36 N.Y.3d 1029 31. People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 (2d Dept. 2020)32. People v. Cipolla, 186 A.D.3d 1136, 127 N.Y.S.3d 368 (4th Dept. 2020)33. People v. Williams, 186 A.D.3d 111......
  • People v. Momoh, 2018–12551
    • United States
    • New York Supreme Court — Appellate Division
    • March 17, 2021
    ...34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seymour, 189 A.D.3d 1269, 134 N.Y.S.3d 211 ; People v. Eduardo S., 186 A.D.3d 1265, 1267–1268, 129 N.Y.S.3d 483 ; People v. Howard, 183 A.D.3d at 640, 121 N.Y.S.3d 622 ). As the Court of Appeals has recently reiterated, "[t]......
  • People v. Guerrero, 110405
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 2021
    ...187 A.D.3d 781, 130 N.Y.S.3d 331 [2020], lv denied 36 N.Y.3d 972, 138 N.Y.S.3d 470, 162 N.E.3d 699 [2020] ; People v. Eduardo S., 186 A.D.3d 1265, 129 N.Y.S.3d 483 [2020], lv denied 36 N.Y.3d 928, 135 N.Y.S.3d 340, 159 N.E.3d 1107 [2020] ). Accordingly, we decline to set aside the waiver up......
  • People v. Wright, 2021–00009
    • United States
    • New York Supreme Court Appellate Division
    • November 24, 2021
    ...N.Y.S.3d 815 remained available for select issues (see People v. Momoh, 192 A.D.3d 915, 916, 140 N.Y.S.3d 778 ; People v. Eduardo S., 186 A.D.3d 1265, 1267–1268, 129 N.Y.S.3d 483 ; People v. Leiva, 184 A.D.3d 731, 731, 124 N.Y.S.3d 207 ; cf. NY Model Colloquies, Waiver of Right to Appeal). ......
  • Request a trial to view additional results

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