People v. Oquendo

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: FRIEDMAN
• Citation: People v. Oquendo, 105 A.D.3d 447, 963 N.Y.S.2d 71, 2013 N.Y. Slip Op. 2320 (N.Y. App. Div. 2013)
• Decision Date: 04 April 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose OQUENDO, Defendant–Appellant.

105 A.D.3d 447

963 N.Y.S.2d 71

2013 N.Y. Slip Op. 02320

The PEOPLE of the State of New York, Respondent,

v.Jose OQUENDO, Defendant–Appellant.

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

April 4, 2013.

Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Ravi Kantha of counsel), for respondent.

FRIEDMAN, J.P., MOSKOWITZ, DeGRASSE, RICHTER, GISCHE, JJ.

Judgment, Supreme Court, Bronx County (Eugene Oliver, J.), rendered September 16, 2011, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of six years, to be followed by five years of postrelease supervision, unanimously affirmed.

We find that defendant's purported waiver of his right to appeal was invalid. At the plea proceeding, the court told defendant that the promised sentence would be six years of incarceration, with five years of postrelease supervision, and that the waiver of appeal was part of the sentence. Other than this brief reference, the court said nothing more about the appellate waiver. Defendant also executed a written waiver of appeal.

A waiver of the right to appeal is effective “ ‘only so long as the record demonstratesthat it was made knowingly, intelligently and voluntarily’ ” ( People v. Bradshaw, 18 N.Y.3d 257, 259, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Although a court need not engage in any particular catechism to find a valid appeal waiver, it must make certain that the defendant has “a full appreciation of the consequences of [the] waiver” ( Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [internal quotation marks omitted] ). A necessary component of a knowing and voluntary appeal waiver is evidence that “the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

We conclude that defendant here did not knowingly, voluntarily, and intelligently waive his appellate rights. The court made only a fleeting reference to the appeal waiver, and included it in the description of defendant's sentence. By conflating the waiver of appeal with the sentence to be imposed, the court failed to adequately ensure that defendant had a “full appreciation of the consequences of [the] waiver” ( Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [internal quotation marks omitted] ), and that he was giving up something more than what is ordinarily forfeited upon a guilty plea ( see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

Although defendant did sign a waiver of his right to appeal, “a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” ( People v. Bradshaw, 76 A.D.3d 566, 569, 906 N.Y.S.2d 93 [2d Dept. 2010], affd.18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Moreover, here, the written waiver form states that the court had advised defendant of the nature of the appellate rights being waived. The record of the proceedings, however, contains no such statements by the court. Under these circumstances, there is an insufficient basis to conclude that defendant's purported waiver was...