People v. Justiniano

• Decision Date: 03 December 2015
• Citation: 20 N.Y.S.3d 714,134 A.D.3d 1172
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel JUSTINIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1172

20 N.Y.S.3d 714

The PEOPLE of the State of New York, Respondent,

v.Daniel JUSTINIANO, Appellant.

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

Dec. 3, 2015.

Proyect & Hart, Parksville (Joel M. Proyect of counsel), for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, LYNCH AND DEVINE, JJ.

DEVINE, J.

Appeals (1) from a judgment of the County Court of Sullivan County (McGuire, J.), rendered December 17, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (four counts), and (2) by permission, from an order of said court, entered August 29, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.

In satisfaction of a 10–count indictment stemming from a spree of home break-ins, defendant pleaded guilty to four counts of burglary in the second degree and purportedly waived his right to appeal from the conviction and sentence. County Court made no sentencing commitment, and defendant acknowledged during the plea colloquy that he could potentially receive consecutively-running sentences of 15 years in prison, plus postrelease supervision, on each count.¹ County Court thereafter rejected defendant's request to be adjudicated a youthful offender and imposed a prison sentence of four years on each count, to be served consecutively, followed by five years of postrelease supervision. The court also ordered defendant to pay a fine of $20,000 and restitution of $15,000. Defendant subsequently retained new counsel and moved to vacate the judgment on the ground that he had been deprived of the effective assistance of counsel (see CPL 440.10[1][h] ). County Court denied defendant's motion without a hearing. Defendant now appeals from both the judgment of conviction and, by permission, from the order denying his postconviction motion.

Defendant was free to waive his right to appeal as an adjunct to the plea agreement, so long as he made a voluntary, knowing and intelligent decision to do so (see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). It was accordingly incumbent upon County Court to verify, among other things, that defendant understood he was "intentionally relinquish[ing] or abandon[ing] a known right that would otherwise survive a guilty plea" as a component of the plea agreement (People v. Hansen, 95 N.Y.2d 227, 230 n.1, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; see People v. Sanders, 25 N.Y.3d at 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010] ). Defendant expressed his willingness to waive his right to appeal during the plea colloquy, but the record is devoid of any indication that an appeal waiver was actually a component of the plea agreement. An appeal waiver was not mentioned when the terms of the plea agreement were recited and, indeed, the People stated that they did not know if defendant was executing an appeal waiver given the absence of any sentencing commitment. Defense counsel then gratuitously offered to have defendant waive his right to appeal in the spirit of "mak[ing] it as easy on everyone as possible." As a result of these statements, County Court was obliged to determine whether an appeal waiver was required as a "detail[ ] of the plea bargain" and, if not, whether defendant understood that he did not have to execute one (People v. Sanders, 25 N.Y.3d at 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). County Court did neither and, given the absence of proof that defendant waived his right to appeal in return for any consideration, we find that waiver to be invalid (see e.g. People v. Crump, 107 A.D.3d 1046, 1047, 966 N.Y.S.2d 282 [2013], lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ; People v. Meiner, 20 A.D.3d 778, 779 n., 797 N.Y.S.2d 925 [2005] ).

We accordingly turn to the sentencing issues raised by defendant , which are properly before us given the absence of a valid appeal waiver (compare People v. Baker, 6 A.D.3d 751, 751, 773 N.Y.S.2d 621 [2004] ). While we are unpersuaded that County Court abused its discretion in denying defendant's request for youthful offender status (see People v. Green, 128 A.D.3d 1282, 1283, 9 N.Y.S.3d 742 [2015] ; People v. Butler, 111 A.D.3d 1024, 1024–1025, 975 N.Y.S.2d 218 [2013], lv. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ), we do agree with defendant's further contention that the sentence imposed was harsh and excessive. Defendant was only 18 years of age when he committed the instant offenses, which were all nonviolent, and he has no prior involvement with the criminal justice system as an adult. He reported that he was abusing alcohol and marihuana at the time he committed the burglaries, and he underwent treatment for substance abuse and depression...