People v. Fortier
| Decision Date | 01 July 2015 |
| Docket Number | 2014-07162 |
| Parties | The PEOPLE, etc., respondent, v. Joseph FORTIER, appellant. |
| Court | New York Supreme Court — Appellate Division |
130 A.D.3d 642
12 N.Y.S.3d 283
2015 N.Y. Slip Op. 05693
The PEOPLE, etc., respondent
v.
Joseph FORTIER, appellant.
2014-07162
Supreme Court, Appellate Division, Second Department, New York.
July 1, 2015.
Mark Diamond, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Opinion
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered July 1, 2014, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
“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, 6 N.Y.3d 248, 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 ). “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 at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Brown, 122 A.D.3d at 136, 992 N.Y.S.2d 297 ).
Further, an appeal waiver is the intentional and voluntary
relinquishment or abandonment of “a known right that would otherwise survive a guilty plea” (People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d at 137, 992 N.Y.S.2d 297 ). It is the responsibility of the judge presiding over the plea and waiver to make it clear to the defendant that an appeal waiver “ ‘is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645...
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