People v. McCaskill

• Decision Date: 12 August 2010
• Citation: 76 A.D.3d 751,905 N.Y.S.2d 721
• Parties: The PEOPLE of the State of New York, Respondent, v. Diondrea McCASKILL, also Known as Ruk, Appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 721 76 A.D.3d 751 The PEOPLE of the State of New York, Respondent, v. Diondrea McCASKILL, also Known as Ruk, Appellant. Supreme Court, Appellate Division, Third Department, New York. Aug. 12, 2010.

Michael E. Trosset, Cooperstown, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, KAVANAGH and STEIN, JJ.

MERCURE, J.P.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered November 24, 2008, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Following his participation in a gunfight in which two bystanders were shot, defendant pleaded guilty to one count of attempted criminal possession of a weapon in the second degree.County Court thereafter sentenced defendant, as agreed, to a prison term of five years to be followed by five years of postrelease supervision. During the plea colloquy, defendant signed a waiver of the right to appeal in open court after counsel indicated that he had reviewed the waiver with defendant and signed it as well. In addition, we note that County Court, in explaining the terms of the plea agreement to defendant, indicated that he "would have to waive or give up [his] right to appeal, but in return, all other charges would be satisfied. Do you understand?" In response, defendant questioned only the details of the length of his sentence.

Although County Court improperly failed to distinguish the right to appeal from the rights that defendant forfeited upon pleading guilty, we note that defendant's detailed written waiver of the right to appeal explained the nature of the right and the appellate process, contained an acknowledgment that he had discussed the right and the consequences of waiving it with counsel, and stated that he was waiving the right voluntarily. Given defendant's thorough written waiver, the court's inquiry of defendant-albeit minimal-coupled with counsel's assurances that he had reviewed the written waiver with defendant and the execution of the written waiver in open court were adequate to demonstrate both that there was "some judicial examination of the waiver itself with a manifestation expressed on the record" ( People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843 [1996] ) and that "defendant's waiver of the right to appeal reflect[ed] a knowing and voluntary choice" ( People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992]; see People v. Johnson, 14 N.Y.3d 483, 486 n., 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010]; People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] ).¹ Accordingly, defendant's argumentthat his sentence is harsh and excessive, which is hissole claim on this appeal, is barred by his valid waiver of the right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]; People v. McKenzie, 66 A.D.3d 1056, 1056, 887 N.Y.S.2d 685 [2009]; People v. Robles, 53 A.D.3d 686, 687-688, 861 N.Y.S.2d 180 [2008], lv. denied 11 N.Y.3d 794, 866 N.Y.S.2d 620, 896 N.E.2d 106 [2008]; People v. Lewis, 48 A.D.3d 880, 881, 851 N.Y.S.2d 295 [2008]; People v. Romano, 45 A.D.3d 910, 914-916, 845 N.Y.S.2d 151 [2007], lv. denied 10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267 [2008]; cf. People v. Callahan, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108).

PETERS and KAVANAGH, JJ., concur.

SPAIN, J. (concurring).

I write separately to explain our view that the record on appeal does not afford a sufficient basis upon which to conclude that defendant's waiver of the right to appeal was knowing, intelligent or voluntary. While the requirement that defendant waive his right to appeal was generically recited up front as a term of the plea agreement and defendant signed a written waiver in open court, nothing on "the face of the record" reflects-as it must-defendant's understanding of the meaning of that condition of the plea agreement, so as to permit its enforcement ( People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992]; accord People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ).

"Giving up the right to appeal is not a perfunctory step" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). There is no dispute that a waiver of the right to appeal, whether done orally during a plea colloquy or in combination with a written waiver, will be enforced only when the record actually demonstrates that it was knowingly, voluntarily and intelligently made, a determination necessarily made, in the first instance, by the trial court ( see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). While eschewing "any particular litany," the Court of Appeals has steadfastly adhered to the principle that "a defendant's understanding of the terms and conditions of the plea agreement [must be] evident on the face of the record" ( People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [emphasis added]; accord People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010]; People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108). This requirement stems, in part, from the fact that "appellate courts also have the responsibility to oversee the process and to review the record to ensure that the defendant's waiver of the right to appeal reflects a knowing and voluntary choice" ( People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108). If the defendant's understanding is not adequately reflected in a colloquy on the record, informed appellate review is simply not possible.

What must, in any given case, be reflected on the record about a defendant's understanding of an appeal waiver when he or she executes a written appeal waiver in open court is the subjectof ongoingdebate. At one end, a "silent record" will not suffice and, thus, where a defendant reportedly signs an appeal waiver outside of court and there is "no record discussion between the court and [the] defendant concerning the waiver," it is ineffective ( id. at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). There must be "some judicial examination of the waiver itself with a manifestation expressed on the record, as may be appropriate ... to show satisfaction of [Court of Appeals'] protocols" ( People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843 [1996] ). Thus, in our view, the content of the written waiver cannot, by itself, establish the defendant's understanding or satisfy the court's duty of inquiry. On the other end, in People v. Lopez ( supra ) the Court of Appeals recommended the practice of combining an in-court execution of a written appeal waiver with a concomitant detailed colloquy.

While the Court of Appeals has not offered specific guidance on what must be discussed-on the record-when a defendant is executing a written appeal waiver, its decisions are instructive. At a minimum, we firmly believe that there must be some record discussion between the defendant, counsel and the court concerning the appeal waiver, in which the defendant acknowledges the signature (or signs in open court) and-directly or through counsel-expresses an awareness and understanding of its content. This can be accomplished, by way of example, by the court providing an explanation on the record or by an on-the-record indication that counsel previously discussed the matter with the defendant. Under any scenario, however, the defendant's understanding must be reflected, e.g., by assurance that he or she has no questions on the matter either for the court or counsel ( see People v. Callahan, 80 N.Y.2d at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108; see e.g. People v. Mosher, 45 A.D.3d 970, 970, 845 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ). Thus, whether the defendant's appeal waiver occurs solely as part of the oral plea colloquy, or is accompanied by a written waiver, the overriding consideration and prerequisite are that the defendant's understanding of that condition of the plea, as with all others, be "apparent on the face of the record" ( People v. Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108). This is not a test or a "mandatory litany" ( People v. Johnson, 14 N.Y.3d at 486, 903 N.Y.S.2d 299, 929 N.E.2d 361) or a "a uniform mandatory catechism" ( People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] [internal quotation marks and citation omitted] ) but, rather, a principle by which appeal waivers may be competently reviewed on appeal. It should not be relegated to a mere "recommendation" to trial courts.

People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006], a memorandum decision often cited in cases in which there is a written appeal waiver, is not to the contrary. Nothing in Ramos supports the conclusioneither (1) that a written appeal waiver alone can ever be adequate, or (2) that the Court eliminated the long-standing requirement in People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 an...