People v. Leak

• Decision Date: 08 August 2018
• Docket Number: 2016-12911,2017-06199,2016-12909,S.C.I. Nos. 2263/16, 2264/16, 2265/16
• Citation: 164 A.D.3d 606,82 N.Y.S.3d 145
• Parties: The PEOPLE, etc., respondent, v. Jeffery LEAK, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 606

82 N.Y.S.3d 145

The PEOPLE, etc., respondent,

v.Jeffery LEAK, appellant.

2016-12909

2016-12911

2017-06199

S.C.I. Nos. 2263/16, 2264/16, 2265/16

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

Submitted—March 30, 2018

Decided August 8, 2018

Paul Skip Laisure, New York, N.Y. (Nao Teri of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and Danielle S. Fenn of counsel; Lorrie Zinno on the memorandum), for respondent.

ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from three sentences of the Supreme Court, Queens County (Gia Morris, J., at pleas; Dorothy Chin–Brandt, J., at sentences), all imposed November 14, 2016, upon his pleas of guilty, on the ground that the sentences were excessive.

ORDERED that the sentences are affirmed.

The defendant entered into a plea agreement pursuant to which he pleaded guilty to two counts of attempted robbery in the first degree (see Penal Law §§ 110.00, 160.15[4] ) and one count of robbery in the third degree (see Penal Law § 160.05 ), in satisfaction of three superior court informations. He was sentenced, in accordance with the plea agreement, to (1) two determinate terms of 8 years' imprisonment plus 5 years of postrelease supervision on the convictions of attempted robbery in the first degree, and (2) an indeterminate term of 3½ to 7 years' imprisonment on the conviction of robbery in the third degree. The Supreme Court directed that all of the sentences of imprisonment would run concurrently with each other.

On appeal, the defendant contends that the sentences of imprisonment were excessive. The People contend that the defendant's argument is precluded by his waiver of the right to appeal.

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 248, 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" ( 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 ).

Here, the record of the plea proceeding demonstrates that the defendant received an oral explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Rocchino, 153 A.D.3d 1284, 59 N.Y.S.3d 715 ; People v. Stiles, 143 A.D.3d 747, 747, 38 N.Y.S.3d 436 ; People v. Romero–Flores, 128 A.D.3d 1102, 1102, 8 N.Y.S.3d 606 ; People v. McRae, 123 A.D.3d 848, 848–849, 996 N.Y.S.2d 531 ; see also People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). Furthermore, the record demonstrates that the defendant executed a written appeal waiver form which, among other things, showed that he understood that his right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; see also People v. Taylor, 162 A.D.3d 690, 74 N.Y.S.3d 763 [2d Dept. 2018] ). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Bryant, 28 N.Y.3d at 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Bradshaw, 18 N.Y.3d...