People v. Hunt

• Decision Date: 13 November 2020
• Docket Number: 750,KA 16-02363
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald J. HUNT, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1648
132 N.Y.S.3d 384 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Donald J. HUNT, Defendant-appellant.

750
KA 16-02363

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

November 13, 2020

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

188 A.D.3d 1648

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, attempted rape in the first degree ( Penal Law §§ 110.00, 130.35 [1] ), attempted criminal sexual act in the first degree ( §§ 110.00, 130.50 [1] ), and burglary in the second degree (§ 140.25 [2] ). Initially, we agree with defendant that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" ( People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S Ct 2634, 206 L.Ed.2d 512 [2020] ; see People v. Youngs , 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] ). County Court's oral colloquy "mischaracterized the waiver of the right to appeal, portraying it in effect as an ‘absolute bar’ to the taking of an appeal" ( People v. Cole , 181 A.D.3d 1329, 1330, 121 N.Y.S.3d 766 [4th Dept. 2020] ; see Thomas , 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; Youngs , 183 A.D.3d at 1228-1229, 121 N.Y.S.3d 701 ). In explaining the waiver, the court suggested that defendant was ceding any right to challenge his guilty plea on appeal, but such an "improper description of the scope of the appellate rights relinquished by the waiver is refuted by ... precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues" (

132 N.Y.S.3d 385

Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Callahan , 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). Moreover, the written waiver of the right to appeal does not "establish a valid waiver because it was not executed until sentencing" ( People v. Fox , 173 A.D.3d 1680, 1681, 99 N.Y.S.3d 906 [4th Dept. 2019], lv denied

188 A.D.3d 1649

33 N.Y.3d 1104, 106 N.Y.S.3d 685, 130 N.E.3d 1295 [2019] ). Even if the written waiver is considered, it did not contain clarifying language; instead, it perpetuated the mischaracterization that the waiver of the right to appeal constituted an absolute bar to the taking of a first-tier direct appeal and even incorrectly stated that the waiver foreclosed appellate review of nonwaivable issues, such as the voluntariness of the waiver, legality of the sentence, and defendant's competency to stand trial (see Thomas , 34 N.Y.3d at 564, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; Callahan , 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Where, as here, the "trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ [this] ‘[C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ " ( Thomas , 34 N.Y.3d at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

Defendant contends that his mental health history cast significant doubt on the voluntariness of his plea. However, " ‘[a] history of prior mental illness or treatment does not itself call into question [a] defendant's competence’ " ( ...