People v. Oquendo
| Decision Date | 04 April 2013 |
| Citation | 105 A.D.3d 447,2013 N.Y. Slip Op. 02320,963 N.Y.S.2d 71 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose OQUENDO, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
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.
[105 A.D.3d 447]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 demonstrates
[963 N.Y.S.2d 72]
that 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[105 A.D.3d 448], 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...
To continue reading
Request your trial
-
People v. Brown
... ... Oquendo, 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 ). To rely solely on the representation of counsel is contrary to the Court of Appeals' instruction that it is the responsibility of the trial court to "at least satisfy itself on the record that the waiver complies with the procedural and integrity-of-process ... ...
-
People v. Bonilla
... ... The detailed written waiver that defendant executed with counsel cannot save the numerous errors in the court's oral colloquy, as " a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal " ( People v. Oquendo , 105 A.D.3d 447, 448, 963 N.Y.S.2d 71 [1st Dept. 2013], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013], quoting 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] ). We agree that one must look ... ...
-
People v. Jackson
... ... Elmer, 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172; People v. Salgado, 111 A.D.3d 859, 975 N.Y.S.2d 172; People v. Oquendo, 105 A.D.3d 447, 447–448, 963 N.Y.S.2d 71; People v. Grant, 83 A.D.3d 862, 863, 921 N.Y.S.2d 285). During the plea proceeding, the defendant was merely told by the County Court that it “want[ed]” him to waive his right to appeal and that, after sentencing, the case would be over ( see People ... ...
-
People v. Bryant
... ... Further, the dissent places undue emphasis on the existence of the written waiver. As we have held, the written waiver that defendant signed was no substitute for an on-the-record explanation of the nature of the right to appeal (see People v. Oquendo, 105 A.D.3d 447, 963 N.Y.S.2d 71 [1st Dept.2013], lv. denied 21 N.Y.3d 1007, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013] ). This conclusion holds especially true here, where the record does not make clear when defendant signed the waiver. Although the waiver itself states that defendant signed the ... ...
-
FIXING APPEAL WAIVERS IN NEW YORK.
...ADMINISTRATOR OF THE COURTS 379 (2018). (77) See People v. Brown, 992 N.Y.S.2d 297, 304, 306 (App. Div. 2014) (citing People v. Oquendo, 963 N.Y.S.2d 71, 71 (App. Div. (78) See Brown, 992 N.Y.S.2d at 304 (citing Oquendo, 963 N.Y.S.2d at 71). (79) See Brown, 992 N.Y.S.2d at 306. (80) See id.......