People v. Phipps
| Citation | 2015 N.Y. Slip Op. 03576,7 N.Y.S.3d 697,127 A.D.3d 1500 |
| Decision Date | 30 April 2015 |
| Docket Number | 105803. |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ruffel PHIPPS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
127 A.D.3d 1500
7 N.Y.S.3d 697
2015 N.Y. Slip Op. 03576
The PEOPLE of the State of New York, Respondent
v.
Ruffel PHIPPS, Appellant.
105803.
Supreme Court, Appellate Division, Third Department, New York.
April 30, 2015.
Cappy Weiner, Kingston, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and LYNCH, JJ.
Opinion
LAHTINEN, J.P.
Appeal from a judgment of the County Court of Sullivan County (Labuda, J.), rendered October 2, 2012, convicting defendant upon his plea of guilty of the crimes of rape in the third degree and criminal sale of a controlled substance in the third degree.
Defendant was charged, in one indictment, with rape in the third degree and endangering the welfare of a child and, approximately two months later, in a separate indictment, with two counts of criminal sale of a controlled substance in the third degree. Thereafter, defendant pleaded guilty, in satisfaction of both indictments, to rape in the third degree and one count of criminal sale of a controlled substance in the third degree and signed two appeal waivers. Following defendant's guilty plea, but prior to sentencing, he moved, pro se, to withdraw his plea and for the assignment of new counsel.
County Court denied defendant's motion to withdraw his guilty plea, but assigned defendant a new attorney. Defendant subsequently moved again, this time through counsel, to withdraw his guilty plea contending, among other things, that he “will be deported as a result of this conviction.” However, defendant thereafter withdrew said motion, as a result of which it was dismissed by County Court. Defendant was then sentenced, as a second felony offender, to an aggregate prison term of four years, with 10 years of postrelease supervision. Defendant appeals, challenging, among other things, the voluntariness of both his plea and the waiver of his right to appeal.
As the record fails to indicate that County Court distinguished between defendant's right to appeal and those rights forfeited upon his guilty plea, we conclude that defendant did not understand
the implications of the appeal waivers and they are therefore unenforceable (see People v. Williford, 124 A.D.3d 1076, 1077, 1 N.Y.S.3d 551 [2015] ; compare People v. Balbuena, 123 A.D.3d 1384, 1385, 999 N.Y.S.2d 600 [2014] ). Although the two written waivers, which were signed by defendant in open court, distinguished these rights and stated that defendant had a full opportunity to discuss the waivers with his attorney, County Court made no inquiry as to whether defendant understood them or whether his counsel had in fact discussed the waivers with him (see People v. Vences, 125 A.D.3d 1050, 1051–1052, 3 N.Y.S.3d 185 [2015] ; compare People v. McCaskill, 76 A.D.3d 751, 752, 905 N.Y.S.2d 721 [2010] ). Defendant next contends...
To continue reading
Request your trial
-
People v. Pope
...of defendant as to whether he discussed the waiver with counsel, who stood by without comment (see 129 A.D.3d 1390People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015] ). This deficiency in the record was not cured when defendant was asked to sign an appeal waiver later that same d......
-
People v. Goldman
...exception allowing him to appeal solely the amount of restitution. Defendant's appeal waiver is, therefore, valid (see People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015], lv. 139 A.D.3d 1112 denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ; People v. Morey, 110 A.D.3......
-
People v. Lowe
...did not validly waive his right to appeal (see People v. Rabideau, 130 A.D.3d 1094, 1095, 12 N.Y.S.3d 386 [2015] ; People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015], lv. denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ; see also People v. Callahan, 80 N.Y.2d 273, 28......
-
People v. Cantey
...( People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] [internal quotation marks and citation omitted]; see People v. Phipps, 127 A.D.3d 1500, 1501, 7 N.Y.S.3d 697 [2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ; 77 N.Y.S.3d 763 People v. Jones 114 A.D.3d 1......