People v. Guarchaj

• Decision Date: 19 November 2014
• Docket Number: 2013-05039
• Parties: The PEOPLE, etc., respondent, v. Juan GUARCHAJ, appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 878
996 N.Y.S.2d 372
2014 N.Y. Slip Op. 08044

The PEOPLE, etc., respondent
v.
Juan GUARCHAJ, appellant.

2013-05039

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

Nov. 19, 2014.

996 N.Y.S.2d 372

Seymour W. James, Jr., New York, N.Y. (Jeffrey Dellheim of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Ferdinand Suba, Jr., on the brief), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY HECTOR D. LaSALLE, JJ.

Opinion

122 A.D.3d 879

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gubbay, J.), rendered April 19, 2013, convicting him of sexual abuse 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 does not reflect that the defendant

996 N.Y.S.2d 373

knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). The Supreme Court's statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Brown, 122 A.D.3d 133, 992 N.Y.S.2d 297 ; People v. Ayala, 112 A.D.3d 646, 975 N.Y.S.2d 889 ; People v. Pelaez, 100 A.D.3d 803, 954 N.Y.S.2d 554 ; People v. Bradshaw, 76 A.D.3d 566, 569–570, 906 N.Y.S.2d 93, affd. 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ). Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights that are forfeited incident to a plea of guilty (see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Pelaez, 100 A.D.3d at 803, 954 N.Y.S.2d 554 ; People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627 ; People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891 ). Although the...