People v. Moncrieft

• Decision Date: 23 January 2019
• Docket Number: 2017–00346,Ind. No. 5845/15
• Parties: The PEOPLE, etc., Respondent, v. Gabriel MONCRIEFT, Appellant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 982
92 N.Y.S.3d 335

The PEOPLE, etc., Respondent,
v.
Gabriel MONCRIEFT, Appellant.

2017–00346
Ind. No. 5845/15

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

Submitted—September 26, 2018
January 23, 2019

92 N.Y.S.3d 336

Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered November 28, 2016, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing

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sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

92 N.Y.S.3d 337

ORDERED that upon the appeal from the judgment, the order of protection issued at the time of sentencing is vacated; and it is further,

ORDERED that the judgment is affirmed.

The defendant contends that his sentence of five years' imprisonment plus five years of postrelease supervision on his conviction of criminal possession of a weapon in the second degree was excessive. The People argue that this contention is precluded by the defendant's waiver of his right to appeal.

A defendant who has validly waived the right to appeal cannot invoke this Court's interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). However, a waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( id. at 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 ).

As this Court recently articulated, " ‘a thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right’ " ( People v. Batista, 167 A.D.3d 69, 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Medina, 161 A.D.3d 778, 779, 76 N.Y.S.3d 629 ). A defendant should also " ‘receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant's conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues ... [and] that appellate counsel will be appointed in the event that he or she were indigent’ " ( People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d 843, 843–844, 81 N.Y.S.3d 167 ). Finally, " ‘trial courts

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should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final’ " ( People v. Batista, 167 A.D.3d at 76, 86 N.Y.S.3d 492, quoting People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ; see People v. Swen, 164 A.D.3d 926, 82 N.Y.S.3d 100 ; People v. Alston, 163 A.D.3d at 843–844, 81 N.Y.S.3d 167 ). As we pointed out in Batista, the Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System's website, include a model colloquy for the waiver of the right to appeal (see People v. Batista, 167 A.D.3d at 76–77, 86 N.Y.S.3d 492 ). While the use of the model colloquy is not mandatory,

92 N.Y.S.3d 338

its use may nevertheless "substantially reduce the difficulties" ( People v. Batista, 167 A.D.3d at 83, 86 N.Y.S.3d 492 [Scheinkman, P.J., concurring] ), provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Etienne, 152 A.D.3d 790, 790, 59 N.Y.S.3d 427 ; People v. Gonzalez, 150 A.D.3d 1024, 1025, 52 N.Y.S.3d 229 ; People v. De La Rosa, 148 A.D.3d 927, 927, 48 N.Y.S.3d 606 ; People v. Cuevas–Alcantara, 136 A.D.3d 650, 650, 23 N.Y.S.3d 902 ). The Supreme...