People v. Jenkins

• Citation: 138 A.D.3d 102,24 N.Y.S.3d 639
• Parties: The PEOPLE of the State of New York, Respondent, v. William JENKINS, Defendant–Appellant.
• Decision Date: 11 February 2016
• Court: New York Supreme Court Appellate Division

138 A.D.3d 102

24 N.Y.S.3d 639

The PEOPLE of the State of New York, Respondent,

v.William JENKINS, Defendant–Appellant.

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

Feb. 11, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

PETER TOM, J.P., DAVID FRIEDMAN, DAVID B. SAXE, BARBARA R. KAPNICK, JJ.

TOM, J.P.

In this appeal, defendant asks this Court to exercise its interest-of-justice power to review and reduce his sentence, negotiated pursuant to a plea agreement, on the grounds that his waiver of his right to appeal was invalid and that his sentence was excessive.

In February 2013, defendant was arrested after selling crack cocaine and marijuana to an undercover police officer. After apprehending him, the police recovered two credit cards and one photo ID card from his pocket, all belonging to an individual who was not defendant. Defendant was indicted for one count of criminal sale of a controlled substance in the third degree, one count of criminal sale of marijuana in the fourth degree, and two counts of criminal possession of stolen property in the fourth degree.

Before trial, defendant agreed to plead guilty to criminal sale of a controlled substance in the third degree and one count of criminal possession of stolen property in the fourth degree in satisfaction of all charges and in exchange for concurrent sentences of 2 ½ years on the criminal sale count and 1 ½ to 3 years on the stolen property count. As part of the bargain, he agreed to waive his right to appeal and judgment was entered as agreed upon.

Notwithstanding the waiver, defendant appealed to this Court asserting that his appeal waiver was invalid and unenforceable and that his sentence was excessive and should be modified in the interest of justice. We find that the record establishes that defendant was properly apprised of the implications of waiving his right to appeal and that defendant made a valid waiver of his right to appeal, which forecloses review of his excessive sentence claim (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).

The record discloses that upon accepting defendant's guilty plea, the court, in a lengthy plea allocution, and after explaining all the "trial rights" defendant was waiving and ensuring he spoke to his attorney about the plea, and was satisfied with his legal help, then engaged in the following colloquy:

"THE COURT: Now, in this case as part of the plea and sentence I promised you, you're being required to waive or give up your right to appeal this conviction.

"Let me explain to you what that means. This is a separate right. It is not a trial right. It's a separate right, the right to appeal.

"So normally a defendant has the right to appeal a criminal conviction ...

"An appeal is a legal proceeding before another court. It's a higher court. It's not before me or Judge Ward, it's before an appeals court.

"On the appeal a defendant, through his lawyer, can argue that some mistake was made in connection with his case, some error, something was wrong. You could also argue that the sentence was too much, too harsh and ask for a lower sentence if one was allowed by law ... "Now, normally even when a defendant pleads guilty he still has certain rights. With the guilty plea you don't give up all your rights normally.

"In this case because of the sentence that I'm promising you, you're being required to give up your right to appeal any aspect of this case in return for the plea and sentence I promised you.

"So do you understand that explanation?

"THE DEFENDANT: Yes, sir.

"THE COURT: Are you willing to do that?

"THE DEFENDANT: Yes, sir."

This language exceeds the colloquy that provided for a valid waiver in People v. Nicholson, one of the cases consolidated under People v. Lopez, 6 N.Y.3d at 254–255, 811 N.Y.S.2d 623, 844 N.E.2d 1145. The trial court ensured that defendant understood that the right to appeal was separate from the "panoply of trial rights automatically forfeited upon pleading guilty," and advised him that while he "ordinarily retains the right to an appeal even after pleading guilty, in this case he was being offered a particular plea by the prosecution on the condition that he give up that right" ( Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see also People v. Rahman, 129 A.D.3d 553, 554, 13 N.Y.S.3d 14 [1st Dept.2015], lv. denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ["The court discussed the waiver in detail and sufficiently ensured that defendant understood that the right to appeal is separate and distinct from the other rights automatically forfeited by pleading guilty"] ). As was the case in Nicholson, it would have been better to secure a written waiver of the right to appeal. However, the record is sufficient to establish that defendant knowingly, voluntarily and intelligently waived his right to appeal ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145, citing People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843 [1996] ).

A defendant who has validly waived his right to appeal may not invoke this Court's interest-of-justice jurisdiction to reduce a bargained-for sentence ( Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). "By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence" ( id. at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

To be sure, as ...