People v. McTerrell

• Decision Date: 10 July 2019
• Docket Number: 2015-12385,Ind. No. 903/14
• Citation: 101 N.Y.S.3d 868 (Mem),174 A.D.3d 648
• Parties: The PEOPLE, etc., Respondent, v. Sean MCTERRELL, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 648

101 N.Y.S.3d 868 (Mem)

The PEOPLE, etc., Respondent,

v.Sean MCTERRELL, Appellant.

2015-12385

Ind. No. 903/14

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

Submitted—May 7, 2019

July 10, 2019

Paul Skip Laisure, New York, N.Y. (Erica Horwitz of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Diane R. Eisner of counsel; Masha Simonova on the memorandum), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered June 25, 2015, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (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 ).

The Supreme Court's statements at the plea allocution improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish (see People v. Moncrieft, 168 A.D.3d 982, 984, 92 N.Y.S.3d 335 ; People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372 ). Additionally, the court failed to inquire of the defendant whether he understood the appeal waiver or to elicit an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Bradshaw, 18 N.Y.3d at 265–266, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Moncrieft, 168 A.D.3d at 984, 92 N.Y.S.3d 335 ). Although the defendant signed a written waiver of the right to appeal, the court never confirmed that the defendant had read and understood the document before signing it (see People v. Bratton, 165 A.D.3d 693, 82 N.Y.S.3d 738 ; People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ). Thus, the defendant's purported waiver of his right to appeal was invalid, and does not preclude review of his excessive sentence claim.

Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

The defendant's contention, raised in his pro se supplemental brief, that the amount of bail was excessive, has been rendered academic by his plea of guilty (see People ex rel. Ferguson v. Campbell , 186 A.D.2d 319, 587 N.Y.S.2d 798 ; People ex rel. Griffin v. Warden, Brooklyn House of Detention for Men , 40 A.D.2d 859, 337 N.Y.S.2d 804 ).

The defendant waived his contention, raised in his pro se supplemental brief, that he was denied the right to testify before the grand jury by failing to move to dismiss the indictment within five days after his arraignment thereon (see CPL 190.50[5][c] ; People v. Zeigler , 128 A.D.3d 737, 738, 7 N.Y.S.3d 600 ).

The defendant's claims of ineffective assistance of counsel, raised in his pro se supplemental brief, which do not directly involve the plea negotiation process and sentence, have been forfeited by his guilty plea (see People v. David , 163 A.D.3d 846, 77 N.Y.S.3d 306 ; People...