People v. Latham, 2016–10667

• Court: New York Supreme Court Appellate Division
• Citation: 162 A.D.3d 1068,80 N.Y.S.3d 128
• Docket Number: Ind. No. 1539/16,2016–10667
• Parties: The PEOPLE, etc., Respondent, v. Michael LATHAM, Appellant.
• Decision Date: 27 June 2018

162 A.D.3d 1068
80 N.Y.S.3d 128

The PEOPLE, etc., Respondent,
v.
Michael LATHAM, Appellant.

2016–10667
Ind. No. 1539/16

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

Submitted—May 16, 2018
June 27, 2018

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel; Robert Ho on the memorandum), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

80 N.Y.S.3d 129

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Cassandra Mullen, J.), imposed September 21, 2016, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant pleaded guilty to one count of attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1] ). He was sentenced, as a second felony offender, to an indeterminate term of imprisonment of two to four years. On appeal, the defendant contends that his sentence of imprisonment was excessive. The People argue that the defendant's contention is precluded by the defendant's waiver of his right to appeal.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant's purported waiver of his right to appeal was invalid.

A waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Although the Court of Appeals has repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights (see People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ; see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Blackwood, 148 A.D.3d 716, 716, 48 N.Y.S.3d 709 ).

"[A] thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right" ( People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). "[A] defendant should [also] ... receive an explanation of the nature of the right to appeal, which essentially advises that this right...