People v. McCaskill

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MERCURE
• 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.
• Decision Date: 12 August 2010

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.

905 N.Y.S.2d 721

Michael E. Trosset, Cooperstown, for appellant.

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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.

76 A.D.3d 751

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.

76 A.D.3d 752

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 argument

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that his sentence is harsh and excessive, which is his

76 A.D.3d 753

sole 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....