People v. Keiser

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MARK C. DILLON
• Citation: 2012 N.Y. Slip Op. 08036,100 A.D.3d 927,954 N.Y.S.2d 184
• Parties: The PEOPLE, etc., respondent, v. David KEISER, appellant.
• Decision Date: 21 November 2012

100 A.D.3d 927
954 N.Y.S.2d 184
2012 N.Y. Slip Op. 08036

The PEOPLE, etc., respondent,
v.
David KEISER, appellant.

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

Nov. 21, 2012.

[954 N.Y.S.2d 185]

Steven A. Feldman, Uniondale, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kristen A. Rappleyea of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

[100 A.D.3d 927]Appeal by the defendant from a judgment of the County Court, Dutchess County (T. Dolan, J.), rendered April 12, 2007, convicting him of attempted criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

[100 A.D.3d 928]ORDERED that the judgment is affirmed.

As a threshold matter, the defendant's written waiver of his right to appeal was not valid, because the County Court did not ensure that he “understood the valued right [he] was relinquishing” ( People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343 [internal quotation marks omitted] ). A detailed written waiver can supplement a court's on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver “does not, standing alone,

[954 N.Y.S.2d 186]

provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement” ( People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93,affd.18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645). Here, the County Court did not mention the appellate waiver during its inquiry of the defendant prior to his plea allocution and merely stated, only after the defendant pleaded guilty, that it would defer the waiver until sentencing. Accordingly, the defendant's written waiver of the right to appeal was not valid.

We reject the defendant's argument that he lacked capacity to enter a plea of guilty. CPL 730.30(1) states: “At any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person ” (emphasis added). An “[i]ncapacitated...