People v. Pelaez

• Court: New York Supreme Court Appellate Division
• Writing for the Court: RANDALL T. ENG
• Citation: 2012 N.Y. Slip Op. 07702,954 N.Y.S.2d 554,100 A.D.3d 803
• Parties: The PEOPLE, etc., respondent, v. Jaime PELAEZ, appellant.
• Decision Date: 14 November 2012

100 A.D.3d 803
954 N.Y.S.2d 554
2012 N.Y. Slip Op. 07702

The PEOPLE, etc., respondent,
v.
Jaime PELAEZ, appellant.

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

Nov. 14, 2012.

[954 N.Y.S.2d 555]

Lynn W.L. Fahey, New York, N.Y., for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

RANDALL T. ENG, P.J., PETER B. SKELOS, ANITA R. FLORIO, and SHERI S. ROMAN, JJ.

[100 A.D.3d 803]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 16, 2009, 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, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Burton, 93 A.D.3d 949, 939 N.Y.S.2d 717;People v. Grant, 83 A.D.3d 862, 921 N.Y.S.2d 285;People v. Monsuri, 83 A.D.3d 870, 920 N.Y.S.2d 677). The Supreme

[954 N.Y.S.2d 556]

Court's statements at the plea allocution suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal ( see People v. Bradshaw, 76 A.D.3d 566, 569–570, 906 N.Y.S.2d 93,affd.18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645). Moreover, there is no indication in the record that the defendant understood the distinction between the right to appeal and other trial rights which are forfeited incident to a plea of guilty ( see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59;People v. Jacob, 94 A.D.3d 1142, 1143–1144, 942 N.Y.S.2d 627;People v. Remington, 90 A.D.3d 678, 679, 933 N.Y.S.2d 891;People v. Cieslewicz, 45 A.D.3d 1344, 1345, 845 N.Y.S.2d 590;cf. People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334). Although the defendant did sign a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature. In any event, 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 at 569, 906 N.Y.S.2d 93). Accordingly, the defendant's waiver of the right to appeal is invalid, and does not bar review of the defendant's claims. We further note that the Supreme Court's explanation of the waiver of the defendant's right to appeal misstated the law by stating that it applied to issues that are not encompassed by an appeal waiver. The Supreme Court thereby effectively indicated, incorrectly, that the appeal waiver would preclude the defendant from seeking to vacate his plea on the grounds that it had been unknowing or involuntary, when, in fact “a...