People v. Mojica

• Decision Date: 11 December 2019
• Docket Number: S.C.I. No. 6060/17,2017–12103
• Citation: 178 A.D.3d 856,111 N.Y.S.3d 885 (Mem)
• Parties: The PEOPLE, etc., Respondent, v. Raul MOJICA, Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 856

111 N.Y.S.3d 885 (Mem)

The PEOPLE, etc., Respondent,

v.Raul MOJICA, Appellant.

2017–12103

S.C.I. No. 6060/17

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

Submitted—October 30, 2019

December 11, 2019

Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Marielle Burnett on the memorandum), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Marguerite Dougherty, J.), imposed August 21, 2017, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant did not knowingly, voluntarily, and intelligently waive 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. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). At the plea allocution, the Supreme Court failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, but that in this case he was being asked to voluntarily relinquish that right as a condition of the plea agreement (see People v. Alston, 163 A.D.3d 843, 844, 81 N.Y.S.3d 167 ; cf. People v. Brown, 122 A.D.3d 133, 144, 992 N.Y.S.2d 297 ). Moreover, the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Santeramo, 153 A.D.3d 1286, 61 N.Y.S.3d 295 ; People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372 ).

Although the record on appeal reflects that the defendant signed a written appeal waiver form, a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" ( People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93, affd 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; see People v. Brown, 122 A.D.3d at 138–139, 992 N.Y.S.2d 297 ). While the written waiver in this case "expressly provided that the [Supreme] [C]ourt had informed the defendant about the nature of his right to appeal, that representation is contradicted by the oral colloquy," which suggested that the waiver of the right to appeal was mandatory ( People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Moreover, although the defendant stated on the record that he discussed the waiver with counsel, the court did not ascertain whether the defendant read the written waiver or was aware of its contents (see People v. Himonitis, 174 A.D.3d 738, 738, 102 N.Y.S.3d 445 ; People v. Brown, 122 A.D.3d at 145, 992 N.Y.S.2d 297 ). Under the circumstances, the defendant's purported waiver of his right to appeal does not preclude appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844...